All the due process money can buy

On June 8, California’s Judicial Council, which governs the state’s court system, ordered judges to stop requiring people to pay bail in order to contest minor traffic tickets. It’s a small but laudable step to reform the criminal justice policies that impose heavy court fees and fines on defendants.

Facing budget cuts, courts and local governments increasingly rely on various fees and fines collected from criminal defendants as revenue streams. For example, in 2013 Ferguson, Missouri, received more than 11 percent of its budget from fines and court costs. But Ferguson is not the only municipality that wrings money out of poor people to fill holes in the budget.

In many cities across the United States, judges impose fines and court costs, regardless of whether defendants are able to pay. Each state, county, city and sometimes prison, jail and judge makes independent decisions about fines and fees. If a person does not pay the fees, judges may issue arrest warrants.

Once in jail, detainees may be billed pay-to-stay charges for their cell, board, clothing, medical care, telephone calls and even toilet paper. Those who cannot afford to pay pile up debts that they will have to pay to the state after their release.

When defendants are released on probation or parole, they may be required to pay for the services of a probation officer and for electronic monitoring.

The Brennan Center for Justice, a public policy institute at the New York University School of Law, estimates that 10 million people owe the government a total of $50 billion because of their involvement with the criminal justice system.

In Florida and Wisconsin, where prisons are authorized to recoup fees from the estates of inmates who die in jail, prison charges outlive prisoners.

That’s not all: In 43 states and the District of Columbia, the court may order defendants to pay for public defender services. Criminal defendants have a right to an attorney, and at least in theory, if they cannot afford private counsel, the state may appoint a public defender to represent them. But charging for the privilege violates the Sixth Amendment’s rights to counsel. In Washington state, defendants pay for the right to trial by a jury: $125 for a six-person jury and $250 for a 12-person jury. That’s one of 17 fees and fines that courts in Washington may impose at sentencing.

In some states, defendants pay additional fees to enroll in an installment plan to pay court costs or fines, and they are charged interest on the unpaid amounts. Those who cannot afford an alternative to detention may end up back in detention. For example, in 2012 a man in Georgia was detained for stealing a can of beer. The judge ordered that he could stay out of jail if he wore an electronic monitoring device. But the defendant could not afford to pay $360 a month for it, so he was jailed.

Poor defendants who fail to pay fines or fees may be held in contempt of court. For those on probation, failure to make payments on time can mean violation of probation. Both offenses can send people back to detention.

Pay-to-stay prison programs, court costs and fines make a mockery of the promise of equal justice under law. They also highlight the unequal impact of the criminal justice system on rich and poor. Poor people — who make up the vast majority of those serving time in detention or outside on probation or parole — simply can’t afford the cost of justice.

By contrast, rich people can buy preferential treatment from prison authorities. For example, in 2012, Michael Keating was convicted in California for a 2010 drunk driving incident that killed his classmate. Keating’s family paid $72,000 for him to serve his four-year sentence at a pay-to-stay facility with a TV, full-size fridge and phone, instead of at a state prison. A number of California jails offer upgrades for cash payments. It’s a matter of time before these high-priced, income-generating upgrades spread across the country. In theory, the upgrades are available to all inmates who fear the dangers of regular prisons, but they are available only to people with the money to pay.

Allowing rich inmates to buy upgrades to safer and more humane detention ignores the constitutional mandate that poor people receive equal justice without being penalized for poverty. In its landmark Gideon v. Wainwright decision in 1963, the Supreme Court emphasized the constitutional guarantees of “procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law.”

Despite this, local policies that violate the Constitution remain in place until they are challenged in lawsuits and overturned. The American Civil Liberties Union has sued repeatedly to abolish such local and state laws or practices, including ones requiring defendants to pay for public defenders.

But ACLU lawsuits to defend the rights of the poor are not enough. State and local governments must be forced to follow constitutional mandates and honor the rights of indigent defendants and prisoners. It is high time that the Department of Justice review criminal justice procedures across the country and set and enforce standards for the protection of indigent defendants.