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The Court Watch Movement Wants To Expose The ‘House of Cards’

Prosecutors and judges across the country are starting to feel eyes on them.

Court Watch NYC

The Court Watch Movement Wants To Expose The ‘House of Cards’

Prosecutors and judges across the country are starting to feel eyes on them.

In a New York City criminal courtroom on a hot June day, a familiar ritual was unfolding: a middle-aged judge sat on a mahogany platform above the rest of the courtroom, the words “In God We Trust” lettered in silver over her head, as mostly Black and Latinx people paraded before her to plead their cases. Some were accompanied by lawyers; most stood next to a public defender who argued in favor of their release. The majority of hearings were completed in a couple of minutes.

Louise Williams, a 27-year-old white woman wearing a nondescript black T-shirt, jeans, and round glasses, her blond hair held back in a clip, sat among the defendants’ girlfriends and siblings assembled on benches in the back of the room. But she wasn’t there as a supporter. She was there to watch.

She’s part of a new program called Court Watch NYC, launched in February to send volunteers into the city’s courtrooms to observe what happens, gather data, and shine a light on how the system works. She did volunteer work in college with people once they got out of prison, but court watching allows her to “see how it all starts,” she said.

Often she discovers there’s much more to a case than the charges suggest. A frail Black woman who walked slowly with a limp was charged with assault. Yet when the details of what happened were discussed in the courtroom, it became clear that she was the victim—assaulted by someone using her own cane. She reported what happened to the police. She was arrested despite never having been arrested before.

A Hispanic man with tattoo-covered arms faced charges of possessing stolen property and trespassing. He stole boxers and T-shirts from a store while struggling with a heroin addiction that he had tried to overcome by voluntarily enrolling in a detox program.

A young Hispanic woman with a conspicuous black eye behind her glasses was charged with assault but said she was the one being abused—slapped in the face and kept from leaving her apartment. The evidence against her came solely from the man she said was abusing her. She had a 7-year-old child and a job to attend to. The prosecutor still requested she be given a bail of $1,500. The judge decided instead to release her without requiring she pay any money, but required her to come back the next day and issued an order of protection against her.

Williams noted of her observations: “They say ‘petty larceny and trespassing,’ you say, ‘OK, he did something.’ But when they read the account … What would it have done to put him in jail? What would that accomplish?”

There was little discussion of whether any of the defendants could afford to pay some of the bail amounts requested by the prosecutor: $10,000, $15,000, $30,000.

Court watching is tedious and sometimes uncomfortable work. The benches are hard. The room is unnaturally cold. There are plenty of rules and regulations, such as a ban on using cell phones of any kind. But it has been eye-opening for Williams.

“I had the same assumptions a lot of people have,” she said. “I thought of bail as being a punitive measure. I thought that’s what it was intended for.”

But then she started watching what happens inside courtrooms. The judge that day let most people go without paying bail. That was unusual; a different judge she watched recently let “absolutely no one” go for free except an older white woman. (A recent analysis conducted by FiveThirtyEight found that bail-setting practices vary enormously by which judge oversees the first arraignment.)

Williams is far from the only New Yorker whose idea of the court doesn’t match reality, said Nick Encalada-Malinowski, civil rights campaign director at VOCAL-NY, one of the organizations behind Court Watch NYC.“There is just in general a misunderstanding by the public of how the criminal justice system works and what on a day-to-day basis it actually looks like. … They see that we have a progressive mayor and they assume that everything is pretty fine,” Encalada-Malinowski told The Appeal.

Court Watch NYC

Only a handful of the cases Williams watched that day involved violent acts; most were for drug possession and larceny. Many appeared to be acts of desperation and poverty. “It’s not what I thought it was,” she said. “This room doesn’t address so many of the issues that are being presented.”

In April 2017, as he was running for election, Brooklyn District Attorney Eric Gonzalez announced that his office wouldn’t seek bail “in most misdemeanor cases” with “certain exceptions.” (The Manhattan district attorney, Cyrus R. Vance Jr., joined him in January, directing his assistants not to request bail for nonviolent misdemeanors with certain exceptions.) Yet the Brooklyn Community Bail Fund continued to receive many requests from people who needed help. “We were still paying a lot of bail, so we were like, ‘Hey, what’s going on?’” said Rachel Foran, managing director of the bail fund. So the organization decided—along with VOCAL-NY and the 5 Boro Defenders—to see for itself.

Since launching in February, the groups say they have watched over 200 court shifts, collected data on 544 cases in its first month alone, and trained more than 300 watchers. They have people watching first appearances, when bail is typically set, six days a week in Brooklyn and Manhattan.

In May, Court Watch NYC released a report detailing some of its findings. The majority of cases it observed were nonviolent—charges like drug possession or driving without a license. Just 13 percent of cases were assaults. The vast majority of cases involved people of color, particularly Black and Latinx.

The group also found that whether the district attorney requests bail has a big impact on whether a judge will set it. Every time the DA requested that a person be released on his or her own recognizance, the judge granted it.

This is the kind of data court watching can yield. But even so, they would rather not have to do it at all.

“It’s really powerful and great that we have this opportunity to go into court and collect this data,” Encalada-Malinowski said. “It’s also a reflection of the failures of city and state government … that they don’t even require basic, basic data.”

Keeping prosecutors’ promises

The idea of court-watching isn’t unique to New York. It’s not even all that new. But it’s having a resurgence thanks to the push for criminal justice reform. Putting eyes in the courts is a crucial way to ensure those reforms are actually having the promised effect, court watch organizations told The Appeal.

“Right now we have this really powerful national movement for bail reform and a lot of terrific momentum,” Sharlyn Grace, the co-executive director of the Chicago Community Bond Fund, pointed out. “Because of that public pressure, we have systems that are trying to make changes and say that they’ve met the demands of the people.”

In response, the job for advocates is transforming from demanding reform to holding these systems accountable.

“For elected officials, all of the benefits of adopting a reform or championing a reform happen when it’s announced,” Grace explained. “Very rarely do people come back a year later and say, ‘How is this actually going?’” Court watching keeps the pressure on to follow through, she said.

Similarly, Court Watch MA recently launched in Massachusetts after the state’s Supreme Judicial Court issued a ruling last August that found judges have to set bail amounts that are affordable for defendants. Experiences on the ground indicated that judges and district attorneys were “not following the spirit” of the decision, said Atara Rich-Shea, director of operations at the Massachusetts Bail Fund. Yet there is no publicly available data on who is being prosecuted for what offenses. The court watch program’s main goal is to collect data on what is actually happening since the decision. The program is now operating in five counties.

Next, Court Watch NYC plans to focus on drug prosecutions, especially after Vance announced in May that his office would decline to prosecute marijuana possession and smoking cases with “limited exceptions” (after the Brooklyn DA at the time made a similar move in 2014). The plan is to start watching the courts this summer with a particular eye on drug prosecutions before Vance’s new policy takes effect Aug. 1 and then afterward to see if anything changes. Court watchers now fill out an additional form along with the old ones with questions pertaining particularly to drugs, such as whether the charges are related to residue or paraphernalia and whether an undercover officer or informant was involved.

The data “will allow us to say bigger things about how the drug war is still being fought in the city against our most marginalized communities,” Foran, the Brooklyn bail fund managing director, said.

A national collaboration

Each new court watch program leans on the experience of those that already existed. “People who run bail funds around the country are always in conversation with each other,” Rich-Shea said. But each one has to be tailored to the particular community and issue where it’s based. “Every court watch program has to be unique because every court system is its own special Kafkaeqsue hellscape.”

“It’s really new, this sort of mission-driven court watch where it’s not just data collecting,” Rich-Shea added. “We’re all learning from each other what works and what doesn’t.”

New York City leaned heavily on the work that had already been underway in Chicago for some time. “The folks in Chicago led the way… creating the process and the nuts and bolts of this is what a successful program looks like,” said Encalada-Malinowski. Chicago advocates had a template for how to recruit volunteers, how to train them, even down to how to design the forms. “It’s not that the forms will be the same and that the volunteers will be the same and not that the goals will be the same, but these little pieces of this is actually how you put this together and how to do it which is really valuable.”

Court watching has existed in fits and starts in Chicago since at least the 1970s, when the League of Women Voters monitored misdemeanor courts. “There’s been a lot of different court watching efforts focused on different things here throughout the years,” Grace said. But the Chicago Community Bond Fund decided to restart the effort last summer after the chief judge of the Circuit Court of Cook County, which includes Chicago, issued a ruling saying that judges have to consider whether a defendant can afford bail before it’s set. “We wanted to know what impact they were going to have,” she said. “We know there’s a big difference to change a policy on paper than to change a practice in courtrooms.”

The trouble is that Illinois courts aren’t subject to Freedom of Information Act requests, so there is no way to get information other than going to court and observing firsthand. “Part of our role as invested community members is to say, ‘It is better than it was, and we haven’t gone far enough, and it’s not good enough yet,’” she said. “In order to do that we have to know how big that gap is between where we want to be where and where we are. And that requires data.”

But, the organization argues, it shouldn’t have to be doing any of this data collection to begin with. “We shouldn’t have to rely on the organizing and willpower of people to know what’s happening,” Grace said. It takes a huge amount of effort: people volunteering their time to sit in court and record what happens on paper, others collating and analyzing the data that’s brought back, still others sifting through the data and creating reports. “The onus should be on the system,” she said. Still, since the Chicago group began court watching, more information about the numbers and demographics of people in jail has been made available online.

After Chicago, Court Watch NOLA in New Orleans is most likely the oldest and perhaps longest-running court watching program in the country, having been in operation for over 10 years. It started after Hurricane Katrina as part of a larger effort to reform the criminal justice system by providing oversight. “There was just such a calamity on the ground after Katrina that something had to be done,” said Simone Levine, the court watch group’s executive director. Her group started with the mission of addressing “efficiency and transparency problems in the court,” including how long cases got prolonged and how long people were being kept in jail before their cases were resolved.

It casts a wide net. “We monitor prosecutors, we monitor the public defenders, we monitor the sheriffs, we monitor the police, we monitor the clerk of court,” Levine said, “because we think everyone is a stakeholder in this process and we’re pushing everyone toward reform for us to have a healthy system.” And sometimes it has to wrestle with more fundamental issues than in some other states. One of its first battles was to simply get the public, including journalists and family members of the defendants, allowed into night court, where determinations about whether people will be released are made.

Court Watch NOLA takes the data it collects and publishes reports that include the organization’s own researched recommendations on best practices. One particular focus recently was prosecutors’ widespread use of arrests and sometimes fake subpoenas to compel victims and witnesses to testify.

“We work with judges and other stakeholders and say, ‘This is what we’re saying, it’s a real problem, here’s our recommendation about what you need to do, can you embrace it?’” Those that do embrace reform get commended; those that don’t will face a public campaign against them.

The power of visibility

The presence of an unfamiliar person with a notepad in the courtroom can also remind system actors they are being held accountable in real time. Court Watch NOLA strives to bring change and transparency simply by being present. “We’ve seen people incarcerated for failing to take a drug test when they have insisted that have gone to go take the drug test,” Levine said. But just as the person was about to be incarcerated again, “the judge sees us and then all of a sudden the defendant will receive an attorney … all of a sudden the defendant will have another opportunity to take the drug test.”

New York court watchers also say they want to be seen. “We believe that they should know that they’re being watched,” Foran said. It’s about “shifting power.” One important interaction, she said, is between district attorneys and court watchers on Twitter. After the announcement that district attorneys wouldn’t request bail in certain misdemeanor cases, Court Watch NYC’s Twitter account reported it was still happening. The district attorney’s office responded to say that those cases were exceptions to the rule. “That shows that they’re paying attention,” Foran said. It also illuminates the wiggle room in these policy reform announcements.

It’s a new interaction for everyone. Court Watch NYC has found that even though the courts are open, they are not necessarily accessible. On the day Williams was observing, many of the people who spoke weren’t miked, and even those who were were still difficult to understand. Court actors use case numbers and jargon that could be hard to follow. “I often miss the penal law or what they’re saying,” she said. Things moved quickly. At one point police officers stood in front of Williams, blocking her view of the proceedings. Encalada-Malinowski said, “The space is not super welcoming to any kind of public understanding of what’s going on.”

Court actors are still adjusting to being watched. “The court system in New York City is not used to any type of accountability at all,” Encalada-Malinowski said. Judges sometimes ask people sitting and taking notes who they are. “Each judge imagines the courtroom as their kingdom. They set the rules. What they say goes,” he said. But anecdotally, court watchers have found that judges and district attorneys notice when they are in the room and that “things seem to go better,” Foran said.

There are conversations underway in other cities about starting similar projects, and just as Court Watch NYC relied on the experiences of those who came before, they are paying it forward by sharing their insights. But, Foran warned, “Court watching is a tactic, like bail funds are a tactic.” It’s not an end in and of itself; the point isn’t just to send people into courts to experience what happens. “All of these things have to be specific to a particular place and should be leading toward something, oriented toward a focus area they’re trying to effect change in.”

Perhaps the most important outcome of court watching, though, is giving the public an understanding of what goes on inside the city’s courtrooms.

“The whole system is like a house of cards,” VOCAL-NY’s Encalada-Malinowski said. “It’s propped up on the reliance of the public’s false understanding of what’s happening. As soon as people really appreciate what’s happening, it will be forced to change.”

How Fines and Fees Criminalize Poverty: Explained

Illustration by Hisashi Okawa

How Fines and Fees Criminalize Poverty: Explained

In our Explainer series, Justice Collaborative lawyers and other legal experts help unpack some of the most complicated issues in the criminal justice system. We break down the problems behind the headlines—like bail, civil asset forfeiture, or the Brady doctrine—so that everyone can understand them. Wherever possible, we try to utilize the stories of those affected by the criminal justice system to show how these laws and principles should work, and how they often fail. We will update our Explainers quarterly to keep them current.

In Georgia, a man stole a can of beer worth $2 from a corner store. The court ordered him to wear an ankle monitor for a year. The company administering it, Sentinel Offender Services, charged him so much money that he eventually owed more than $1,000. Trying to keep up with his payments, he sold plasma, but he fell behind and the judge jailed him for non-payment.

In Amarillo, Texas, Janet Blair-Cato received a “barking ticket” because the abandoned dogs she rescued made too much noise. Police also gave her tickets for failing to obtain the proper vaccinations and buy dog tags. In total, she owed thousands of dollars. She missed an installment on her payment plan, and the judge issued a warrant for her arrest. She spent 52 days in jail. Two days after her release, she received a new barking ticket. She has stopped rescuing dogs.

In Macomb County, Michigan, the sheriff’s department arrested 32-year-old David Stojcevski because he did not pay a $772 traffic ticket for careless driving. He was ordered to spend 30 days in jail, but he died on the 17th day after experiencing seizures and convulsions due to drug withdrawal.

To raise revenue and make up for budget shortfalls, cities, states, courts, and prosecutors levy hefty fines at nearly every stage of the criminal justice system. People leaving prison owe on average $13,607 in fines and fees. For those who are poor, these fees can be catastrophic. An inability to pay can lead to a suspended license, additional fees, and even jail. In this Explainer, we explore all the ways the poor are regressively taxed in the justice system, and what can be done to stop these practices.

1. People receive crushing fines and fees throughout the criminal justice system.

Whether it’s a city imposing the fees or a court system, the effect is the same: an added burden on those who can least afford it.

Cities assess fees for minor infractions.

To increase revenue, many states and municipalities impose hefty fines on those charged with minor offenses like traffic violations, jaywalking, or even leaving a trashcan on the street. Because the offenses are “minor” and because the penalties are, at least superficially, not severe, people often receive these fines without a lawyer to help contest them. [Kendall Taggart and Alex Campbell / Buzzfeed]

Ferguson, Missouri, is probably the city best known for abusing this practice. Rather than raise taxes, the city, home to the Fortune 500 company Emerson Electric, charges hefty fines and fees for offenses as minor as “walking in the roadway,” walking with “saggy pants,” or putting out the trash on the wrong day. Police officers’ evaluations were tied to their ticket-pushing “productivity,” and, in 2013, fees raised through municipal court fines amounted to 20 percent of the city’s budget. [Walter Johnson / The Atlantic]

Qiana Williams, a homeless single mom, was one of many ensnared in Ferguson’s fee trap. At 19, she received a ticket for driving without a license. She missed a court date and the police arrested her. Unable to pay the $250 bond, she stayed in jail. That began her cycle through the system where, in total, she spent over four months in jail because of unpaid tickets and fines. On one occasion, police arrested her after she called them because her ex-boyfriend assaulted her. [Whitney Benns and Blake Strode / The Atlantic]

This is a national problem. In Austin, Texas, Valerie Gonzalez lacked a driver’s license but needed to drive her five kids to school and her husband and herself to work. Over the years, she amassed more than $4,500 in fines for driving without a license. She could never pay them because she was so poor that she often lived out of her car. When police arrested her on traffic warrants, a judge ordered her to pay $1,000 that day or spend 45 days in jail. [Jazmine Ulloa / Austin American-Statesman]

Courts impose fees for arrests, lawyers—and virtually everything else.

Courts impose astronomical fees on those charged with crimes, fees known as legal financial obligations. These include arrest fees, bench warrant fees, lawyer fees, crime lab fees, jury fees, and victim assessments. There are even fees for sleeping in jail. In 1991, just 25 percent of convicted people received court-ordered fines. In 2004, 66 percent did. [Alana Semuels / The Atlantic]

According to a study conducted by National Public Radio, in at least 43 states, defendants must pay a fee for a public defender. In at least 41 states, they are charged “room and board” for prison stays. And, in every place but Washington, D.C., they must pay to wear an electronic home monitoring device. [Joseph Shapiro / NPR]

North Carolina courts charge fines for seemingly everything. Defendants unable to afford a lawyer are assessed $60 before a judge considers whether to appoint one. Once a lawyer is appointed, the defendant must pay an hourly fee. If the defendant is held in jail, unable to make bail before trial, he must pay $10 a day. If he is placed on pretrial release, he must pay $15. There is a $600 fee if the prosecutor decides to test evidence at the state crime lab. Many of these charges cannot be waived by a judge. [Anne Blythe / News & Observer]

Private probation companies often levy their own fines and fees, and they jail people for nonpayment.

In Tennessee, the private probation company, Providence Community Corrections, charged people monthly supervision fees along with fees for nearly every required service, including drug tests and community service. If people couldn’t pay, they were jailed. As in Georgia, some “clients” reported selling plasma to avoid going to jail for nonpayment. [Shaila Dewan / New York Times] In September 2017, the company agreed to pay $14 million to settle a federal lawsuit accusing it of extortion and violating federal racketeering laws. [Adam Tamburin / The Tennessean]

In Montgomery, Alabama, police repeatedly ticketed 49-year-old Harriet Cleveland for driving without insurance and a license. She kept driving because she needed to drop her son off at school and go to work. Unable to pay the fines, she received two years’ probation. Judicial Correction Services then charged her $200 a month, including a $40 “supervision” fee. She couldn’t keep up with the fines, and accrued over $1,000 in private probation fees. After her two-year probation ended, she received a notice from the district attorney demanding nearly $3,000 in payment — far higher than the original fees. The DA had added a 30 percent collection fee. Afraid of arrest, she skipped court. Police later arrested her on a warrant and locked her up for a month, where she slept on the floor. [Sarah Stillman / The New Yorker]

Prosecutors charge fines and fees for their own diversion programs and, in some jurisdictions, for the prosecution itself.

In Atlanta, Marcy Willis used her credit card to pay for a rental car for her friend. He gave her cash, and then disappeared. She eventually recovered the car and returned it, but the state nonetheless charged her with felony theft. It offered the single mother of five a chance at pretrial diversion, where, after three months of classes and community service, her case would be dismissed and her record expunged. But she could not afford the $690 it would cost her to participate. [Shaila Dewan and Andrew W. Lehren / New York Times]

In Charlotte, North Carolina, police arrested Rahman Bethea for embezzling video equipment from the hotel where he worked. Because this was his first offense, he was eligible to participate in the city’s deferred prosecution program. Prosecutors would dismiss his case if he completed certain requirements. He was required to pay $899 to participate, but because he had only $100, he could not get into the program. [Michael Gordon / Charlotte Observer]

In Coachella and Indio, California, courts use a private law firm to prosecute individuals accused of violating city ordinances that carry small fines. Several months after being charged, those accused find a surprise in the mail: a bill for the prosecution. While the fine might only be a few hundred dollars, they are responsible for thousands of dollars for the prosecution. One man accused of doing work on his living room without a permit received a bill for $26,000. [Scott Shackford / Reason]

Most people are too poor to pay these fines — so they pay interest.

Known as the “poverty penalty,” fines and fees are often doubled and tripled when an individual cannot make the initial payment. In Washington State, for example, legal financial obligations average $1,347. Those unable to pay the full sum immediately will end up owing much more. The state charges a 12 percent interest rate and a yearly $100 surcharge. [Alana Semuels / The Atlantic]

2. These fines and fees can wreak havoc on people’s lives.

Being unable to pay can result in a range of penalties, including jail time and a suspended license.

The threat of jail time

In 1983, in Bearden v. Georgia, the Supreme Court ruled that people cannot be jailed or have probation revoked because of an inability to pay fines. In reality, judges rarely check on a person’s economic status, and for the most part, people have no lawyer to assist them in asserting their rights. [Alana Semuels / The Atlantic]

In 44 states, judges can send people back to jail if they “willfully” refuse to make payments — a loose term. Sometimes, judges lock up poor individuals because they don’t have a job, claiming their unemployment is pretext for their refusal to pay. [Alana Semuels / The Atlantic]

In El Paso, Texas, which collected $19 million in fines in 2015, the court requires people to pay 25 percent of their traffic-related debt before considering transferring it to a payment plan. If the person can’t make that high a payment, he or she is jailed. [Bobby Blanchard / Dallas Morning News]

Levi Lane was pulled over by the police on the way home from his night shift for driving eight miles over the speed limit. Police arrested him for unpaid traffic tickets — five of them totaling $3,400. Unable to pay that amount on an $8-an-hour job, the judge locked him up. Lane spent 21 days in jail. The judge never asked about his ability to pay, nor did he believe he had to do so. “I’m not required by law to ask anything,” he stated. [Kendall Taggart and Alex Campbell / BuzzFeed]

Carina Canaan also found herself in El Paso’s jail. She accrued $3,000 for driving without a license. She couldn’t pay it off, and so she spent 10 nights in jail while pregnant. But that stay didn’t wipe out all of her fees. She still owes surcharges, which prevents her from obtaining a license. Because she needs the license for certain jobs, she has repeatedly been turned down for employment. [Kendall Taggart and Alex Campbell / BuzzFeed]

Driver’s license suspensions

In the majority of states, unpaid court debt can result in a driver’s license suspension. Only four of those states require a hearing to determine whether the person is willfully failing to pay. [Beth Schwartzapfel / The Marshall Project] In 2006, almost 40 percent of suspended licenses in the country occurred because people could not pay traffic tickets or child support, or because of drug possession. [Henry Graber / Slate]

In Kansas, over 100,000 people — one in every 20 adults — had their licenses suspended for failing to pay traffic tickets. [Oliver Morrison / Wichita Eagle]

In Lapeer, Michigan, Shane Moon stopped paying his car insurance to cover other expenses when his girlfriend became pregnant. But he had to drive to construction sites to keep his job. He got pulled over and received a ticket, with a “driver responsibility fee” attached. When he couldn’t pay, his license was suspended — which came with another fee. He kept driving to work, and he kept getting pulled over and receiving tickets and fines. As of September 2017, he was homeless and still could not pay his tickets. [Henry Grabar / Slate]

In Duval County, Florida, between 2012 and 2016, 2,004 people received jaywalking tickets. Unable to pay the $65 fine for something thousands of people do every day, 982 had their driver’s licenses suspended. African Americans were disproportionately affected. While representing 29 percent of the overall county population, they comprised 54 percent of those whose licenses were suspended for jaywalking. [Ben Conarck, Topher Sanders, and Kate Rabinowitz / Florida Times-Union and ProPublica]

Losing a license because of an unpaid fee can lead to a loss of job and social services. Most people need to drive to work and some companies require a license as a prerequisite for employment. A 2007 study showed that one third of licenses suspended in New Jersey were the result of unpaid fees. Forty-two percent of people with suspended licenses subsequently lost their jobs, and half failed to find new ones. Nine out of 10 people lost income. [Henry Grabar / Slate]

Other grave losses

In Houston, a single mother earning $9 an hour received a job offer where she would make $14. But she had an outstanding warrant for nonpayment of a fine, and the employer conditioned her job offer on payment. She couldn’t afford it, and she lost the job. [Texas Appleseed / The High Cost of Jailing Texans for Fines & Fees]

A woman in her 60s lost her subsidized housing because she owed $500 from a decades-old conviction for forging a prescription. She ended up homeless. [Joseph Shapiro / NPR]

3. These fines disproportionately affect people of color.

In Ferguson, the Department of Justice determined that all levels of government — from police to city hall — targeted African Americans for hefty tickets and fines. African Americans made up 85 percent of those stopped by police for vehicle infractions carrying large fines from 2012-14, despite making up just 67 percent of the population. [Michael Martinez / CNN]

In a review of the 50 cities with the highest percentage of revenue coming from fines and fees, using 2012 Census data, Priceonomics found a direct relationship between a high African American population and high fees. It discovered that these places have African American populations five times greater than the national average. Jurisdictions with high populations of white people simply did not issue as many fines.

Dan Kopf / Priceonomics

4. It is unclear how much revenue these fines and fees actually provide.

As a report from the Criminal Justice Policy Program at Harvard Law School points out, the financial benefits of fines and fees may be illusory. Most places do not track how much it costs to actually collect criminal justice debt—the cost of jail time, the cost of arrest, the cost of issuing a warrant, not to mention the economic cost to an area when someone loses a job.

5. Despite media attention on this issue, some places are doubling down on these practices.

Some judges in North Carolina have waived the state’s hefty fees, described earlier. But a 2017 state law cripples their ability to do so. Before judges show even the slightest bit of compassion toward indigent defendants, they must notify every agency entitled to the funds, which often includes corrections, police and schools. Those groups then have a right to contest the waiver. Defense lawyers and advocates worry that this could lead to fewer fee waivers—and more people locked up because they can’t pay. [Joseph Neff / The Marshall Project]

6. But the tide has started to turn. Legal challenges are mounting and some states are pushing through reform.

Around the country, lawyers are challenging the constitutionality of both debtors’ prisons and the practice of suspending licenses for inability to pay fines and fees.

In Nashville, Tennessee, lawyers successfully argued the city traps people in a permanent cycle of poverty by suspending licenses for unpaid debt. The district judge agreed, calling the practice unconstitutional. “If a person has no resources to pay a debt,” federal Judge Aleta Trauger wrote, “he cannot be threatened or cajoled into paying it; he may, however, become able to pay it in the future. But taking his driver’s license away sabotages that prospect.” [Dave Boucher / The Tennessean]

A federal judge in New Orleans recently ruled that state judges regularly violate the Constitution by jailing people unable to pay the fines those same judges had assessed. Many of the plaintiffs spent several days in jail with no hearings on their ability to pay. The federal judge described the two conflicts of interest that exist when a judge first sets the fine intended to support the court’s coffers, and then again when the judge sets penalties for the person’s inability to pay that fine. “So long as the judges control and heavily rely on fines and fees revenue … the judges’ adjudication of plaintiffs’ ability to pay those fines and fees offends due process.” [Matt Sledge / The Advocate]

In Sherwood, Arkansas, a Little Rock suburb, lawyers sued because the town locked up people who couldn’t pay fees. The suit targeted Sherwood’s “hot check” court, where officials charged thousands of dollars to people accused of writing checks with insufficient funds, even if they were just $15 short. In November 2017, Sherwood settled the case. People can now do community service to cover the fines. [Jon Herskovitz / Reuters]

7. Legislative bodies are also changing their practices.

In Washington, D.C., the D.C. Council approved legislation preventing the city from suspending licenses for missed court hearings or unpaid traffic tickets. Those with outstanding fines will have the option of paying them off through community service.  This will have a significant effect: Between 2010 and 2017, the city suspended 126,000 licenses. [Reis Thebault / Washington Post]

In Maine, the legislature this year passed a bill to end automatic license suspensions for missed fines.  Although the governor vetoed the bill, the legislature overwhelmingly overrode the veto, and the measure will now become law. [Reis Thebault / Washington Post]

In San Francisco, the Board of Supervisors recently voted to eliminate fees associated with the criminal justice system, including fees for probation, electronic monitoring, and being booked into jail.  While people will still be subject to the state’s mandatory fees, San Francisco will now be the only city to decline to charge discretionary fees. [Joanna Weiss and Lisa Foster / Washington Post]

The California State Legislature passed a law in 2017 outlawing the practice of suspending driver’s licenses because of unpaid traffic fines. The law does not apply retroactively to the 488,000 people who have suspended licenses for unpaid traffic fines or missed court appearances. [Associated Press]

The Nebraska Legislature passed a law requiring those with unpaid fines to appear before a judge rather than automatically receiving jail time. The judge can dismiss the fines or assign community service hours. [Julia Shumway / Associated Press]

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What Brett Kavanaugh on the Supreme Court Would Mean for Criminal Justice

Trump’s pick to replace Justice Kennedy would most likely undermine the rights of criminal defendants and stall progress on solitary confinement, prisoners’ rights, and the death penalty.

Trump announces Brett Kavanaugh as his nominee to succeed Anthony Kennedy on the U.S. Supreme Court.
Credit: Chip Somodevilla/Getty Images

What Brett Kavanaugh on the Supreme Court Would Mean for Criminal Justice

Trump’s pick to replace Justice Kennedy would most likely undermine the rights of criminal defendants and stall progress on solitary confinement, prisoners’ rights, and the death penalty.

In 2015, Justice Anthony Kennedy wrote a concurrence in a death penalty case to sound the alarm on solitary confinement. The prisoner in that case, Davis v. Ayala, had probably “spent 20 years or more in a windowless cell no larger than a typical parking spot.” Kennedy noted that such confinement was typical on death row and lamented “the human toll wrought by extended terms of isolation,” which produces anxiety, panic, withdrawal, hallucinations, self-mutilation, and suicide. Kennedy argued that prison conditions are too often ignored: “prisoners are shut away—out of sight, out of mind,” and the “judiciary may be required” to intervene.

Two years later, Justice Stephen Breyer wrote a similar dissenting opinion and voted to stay an execution based on a prisoner’s time in solitary confinement. “If extended solitary confinement alone raises serious constitutional questions,” he wrote, “then 20 years of solitary confinement, all the while under threat of execution, must raise similar questions, and to a rare degree, and with particular intensity.”

Together, the opinions opened a window for the Supreme Court to mandate urgently needed and constitutionally required reform. In the United States, about 25,000 prisoners are serving a substantial part of their sentences in solitary confinement, with 80,000 to 100,000 prisoners held in solitary at any given time. This includes children, for whom the effects of isolation are especially severe. With the conservative Kennedy and moderate Breyer inviting legal challenge, there was hope for meaningful judicial review.

But then Justice Kennedy announced his retirement, President Trump nominated D.C. Circuit Judge Brett Kavanaugh to replace him, and the window to challenge solitary confinement in the Supreme Court will almost certainly slam shut if he is confirmed.

Kavanaugh was chosen precisely for his party loyalty, conservative ideology, and “central casting” background as a white male swaddled in the prestige of elite private schools and powerful government institutions. Republican Senator John Kennedy of Louisiana had said that if Justice Neil Gorsuch has “got a twin, let’s nominate him,” and that is effectively what happened. Kavanaugh and Gorsuch went to prep school together. They clerked for Justice Kennedy on the Supreme Court together. And they were both appointed by President George W. Bush to a federal circuit court before Trump picked them for the Supreme Court.

Kavanaugh and Gorsuch also share similar views on criminal justice, each protecting the rights of criminal defendants in a limited set of cases. Indeed, Kavanaugh has received praise from criminal justice and civil liberties advocates for his laudable concerns about overcriminalization. But the same was true of Gorsuch, and his first vote of consequence on the Supreme Court led to an execution.

Overall, replacing Kennedy with Kavanaugh will only mean fewer legal protections for people ensnared in the criminal justice system. It’s unlikely that Kavanaugh would ever provide the decisive fifth vote for a criminal defendant or victim of police brutality. If he joins the Court’s more liberal members in a criminal justice case, Justice Gorsuch and perhaps Chief Justice Roberts would most likely join as well. But on certain issues—particularly conditions of confinement and the death penalty—Kavanaugh would solidify a conservative majority where Kennedy had been a potential vote, and even a leading voice, in favor of a more humane justice system.

Consider Kennedy’s pivotal role on issues of prisoner rights and excessive punishments. In 2011, he wrote the 5-4 opinion ordering California to release thousands of prisoners to reduce overcrowding. On capital punishment, he wrote 5-4 opinions holding that it is unconstitutional to execute minors and to impose the death penalty for rape. In 2010, Kennedy wrote the 6-3 opinion in Graham v. Florida holding that juveniles cannot be sentenced to life without parole for non-homicide offenses, and in 2012 he joined the 5-4 opinion in Miller v. Alabama holding that mandatory life without parole for juveniles is unconstitutional.

With Kennedy as the fifth Republican appointee, it was plausible that the Court would not only address long-term solitary confinement on death row but eliminate death row altogether. Kavanaugh’s confirmation would abruptly stall further progress in these areas.

Kavanaugh’s views on criminal justice are defined by a deference to law enforcement and a broad view of executive power that will enable more stops and searches, more arrests, more prosecutions, and an overly punitive justice system.

In a speech last year, Kavanaugh praised the work of former Chief Justice William Rehnquist to eliminate constitutional protections for criminal defendants and to uphold the constitutionality of the death penalty. Kavanaugh called Rehnquist his “judicial hero,” and singled out his efforts to eliminate the Fourth Amendment’s exclusionary rule—which bars the admission of unlawfully obtained evidence at trial—and to weaken Miranda v. Arizona, the seminal ruling that requires police to notify suspects of their rights to remain silent and to have counsel present before interrogating them.

Kavanaugh’s record on the D.C. Circuit reflects these views. In a concurrence, he wrote that the National Security Agency’s expansive warrantless surveillance program that collected phone data on hundreds of millions of Americans did not constitute a “search” under the Fourth Amendment. And he argued, in dissent, that a police officer did not violate the Fourth Amendment when he stopped a defendant without probable cause and unzipped his jacket to search for evidence.

In a series of decisions, Kavanaugh deferred to the executive branch on detainees held in Guantánamo Bay, defending the controversial use of military commissions to prosecute terror suspects and limiting the rights of detainees to challenge their confinement in federal court.

And on sentencing, last month Kavanaugh dissented from a decision that vacated a prison sentence because the trial judge improperly sought to make an example of the defendant without explaining why he was singled out for especially harsh treatment. Kavanaugh found this reasoning “confounding.”

Kavanaugh’s concerns about overcriminalization, on the other hand, are more circumscribed. He has argued that criminal prosecution requires clear notice of what constitutes a crime and what the consequences of that crime will be. Like Gorsuch, he has specifically questioned the “phalanx of federal regulatory crimes” that criminalize a widening swath of behavior without sufficient notice or guidance.

In United States v. Burwell, for example, the D.C. Circuit (including Judge Merrick Garland, President Barack Obama’s unsuccessful nominee to replace Justice Antonin Scalia) upheld a 20-year sentence enhancement for a man who used automatic weapons in a series of bank robberies, even though the government did not prove that the man knew that his weapon fired automatically. In dissent, Kavanaugh argued that “imposing an extra 20 years of mandatory imprisonment based on a fact the defendant did not know is unjust.”

But Justice Gorsuch’s record serves as a cautionary tale against drawing broad conclusions from Burwell. The rationale of Kavanaugh’s Burwell dissent mirrors much of what then-Judge Gorsuch wrote on the Tenth Circuit about the risks of overcriminalization. He too dissented over people who “sit in prison because … case law allows the government to put them there without proving a statutorily specified element of the charged crime.”

Yet on the Supreme Court, Gorsuch has evinced hostility toward criminal defendants across a variety of issues, often in dissent. He dissented when the Court held that police need a warrant to surveil suspects using cell tower data. In capital cases, he dissented when the Court provided relief to a Black defendant sentenced to die by a juror who used a racial slur to describe Black people and he dissented when the Court held that capital defendants have the right to maintain their innocence at trial, even when their lawyer wants to admit guilt. Gorsuch also joined an opinion holding that noncitizens detained under the Immigration and Nationality Act are not entitled to periodic bond hearings.

Adding Kavanaugh to the already conservative Roberts Court will only make it more so. Once promising efforts to improve conditions for prisoners and to further reduce if not eliminate executions would turn doubtful. But that is just the near term. Kavanaugh is only 53; Justice Gorsuch is 50. If Kavanaugh is confirmed, the once high-school classmates will serve on the high court together for decades.

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