According to Chiraag Bains in a New York Times op-ed, “Attorney General Jeff Sessions [has] retracted an Obama-era guidance to state courts” designed to end the practice of sending people who are “too poor to pay fines” to debtors’ prisons. Withdrawing the guidance crafted to stop what Bains says is a “blatantly unconstitutional” practice is a “sign that the federal government is retreating from protecting civil rights for the most vulnerable.”
Bains, a former senior counsel in the Justice Department’s Civil Rights Division, highlights the importance of these protections and says that he saw firsthand how the criminal justice system can be used as a “for-profit enterprise,” during the investigation into Ferguson, Mo., after the police killing of Michael Brown.
As one of the investigating lawyers, Bains says that Ferguson extracted “millions from its poorest citizens … with policing strateg[ies] to maximize revenue rather than ensure public safety.” He claims that officers reported being “pressured to issue as many tickets as possible,” and that “even the local judge was in on it, imposing penalties of $302 for jaywalking and $531 for allowing weeds to grow in one’s yard.” African-Americans were disproportionately affected, writes Bains, by a vicious cycle of having arrest warrants issued when they fell bend on payments followed by “new charges, more fees and the suspension of driver’s licenses.”
At the time of the investigation, says Bains, “16,000 people had outstanding arrest warrants from Ferguson,” a city that only has 21,000 people! “Untold numbers,” he says, “found themselves perpetually in debt to the city and periodically confined to its jail.”
These problems are “not unique to Ferguson,” however, says Bains, and so “in 2015, the Justice Department convened judges, legislators, advocates and affected people to discuss this problem and devise solutions.” It is the resulting “2016 guidance [that] set out basic constitutional requirements,” like not imprisoning a person for non-payment without first asking whether he or she can pay and offering alternatives like community service, that the Attorney General unapologetically withdrew last week.
To find out more about Sessions' move and how it potentially opens the way for the criminal justice to be used as a “for-profit enterprise, read “Sessions Says to Courts: Go Ahead, Jail People Because They’re Poor,” by Chiraag Bain, and published by The New York Times on December 28, 2017.