“What Is The Price of Justice?” – The DOJ’s Recent Guidance to Courts on Ability to Pay

People in communities of color who are struggling to achieve economic security often find themselves burdened by court-ordered financial obligations that they have no ability to pay. Frequently, this results in people being incarcerated in local jails due to courts’ unwillingness to examine, or disregard of, each person’s financial circumstances. Recognizing these harms, the U.S. Department of Justice (DOJ) has recently given state and local courts urgent notice that many common practices used to enforce collection of such debts may violate an individual’s 14th Amendment right to equal protection or, more likely, due process. According to the DOJ, these practices may also violate federal civil rights law.

In response to community outrage across the nation over law enforcement and court practices in places such as Ferguson, Missouri, and sustained protests by Black Lives Matter and other groups, the federal DOJ has made it a priority to caution state and local courts enforcing financial debts against practices that violate defendants’ due process rights. And though the initial focus of these efforts was on financial obligations arising from municipal and criminal justice fines and fees, U.S. Attorney General Loretta Lynch has stated that the DOJ intends to expand its efforts, keeping “equal justice for all—in all applications of the law at the forefront of everything that we do” [emphasis added]. Furthermore, in December 2015, Attorney General Lynch emphasized the importance of these efforts to struggling, low-income parents and families:

[W]hat we are seeing in this country amounts to nothing less than the criminalization of poverty… of a condition that is not of peoples’ making. … Because the consequences of the criminalization of poverty are not only harmful, but they are so far-reaching, they affect families beyond the individual lives; an individual’s ability to support their family, eaten away… [A] debt must be capable of being paid, if it is not instead a lifetime yolk of servitude.

One such debt that affects many parents, children, and families in low-income communities of color is court-ordered child support, which may be owed both to a parent, as well as to the government to reimburse public assistance payments (i.e. TANF). The enforcement of child support debt often involves court and administrative policies and practices that are very similar to those that the DOJ has recently raised alarms about in regard to the collection of fines and fees. These include: threatening a person with incarceration, and actually jailing them; issuing an arrest warrant, and actually arresting them; and revoking driver’s licenses—all without determining if the person has the actual and present ability to pay.

The DOJ has strongly stated that courts must determine a person’s ability to pay prior to taking any enforcement actions that would affect their liberty (i.e., arrest and/or incarceration), or their driving privileges. The DOJ’s March 14, 2016, letter, from its Civil Rights Division and Office for Access to Justice to state and local courts, asserts the following:

  • “Courts must not incarcerate a person for nonpayment… without first conducting an indigency determination and establishing that the failure to pay was willful. … [T]he Supreme Court has repeatedly held that the government may not incarcerate an individual solely because of inability to pay… Further, a court’s obligation to conduct indigency inquiries endures throughout the life of a case. … For that reason, a missed payment cannot itself be sufficient to trigger a person’s arrest or detention unless the court first inquires anew into the reasons for the person’s non-payment and determines that it was willful.” [Emphasis added.]
  • “Courts must not use arrest warrants or license suspensions as a means of coercing the payment of court debt when individuals have not been afforded constitutionally adequate procedural protections. … Warrants must not be issued for failure to pay without providing…a hearing where the defendant’s ability to pay is assessed… If a defendant’s driver’s license is suspended because of failure to pay…, such a suspension may be unlawful if the defendant was deprived of [their] due process right to establish inability to pay.” [Emphasis added.]

The legal parallels between the collection of court-ordered fines and fees, and child support, are further emphasized by the DOJ’s reliance in its letter on a recent U.S. Supreme Court case which directly concerned a parent’s ability to pay in the context of incarceration for child support—the Turner v. Rogers case (2011). Courts must determine ability to pay prior to threatening a person with incarceration, or actually jailing them. CFFPP has written comprehensive analyses about the Turner decision’s implications for low-income parents, children, and families of color.

Lastly, the DOJ’s letter emphasizes that to the degree that people of color are disparately harmed by the financial collection practices of court systems that receive federal funds, this may be a violation of federal civil rights law. Given that all state child support enforcement agencies receive federal incentive funding, such agencies must comply with Title VI of the Civil Rights Act of 1964, and associated case law and regulations, which forbid disparate harm impacting people of protected classes, including by race, ethnicity, gender, and age. CFFPP has repeatedly recommended that the federal Office of Child Support Enforcement (OCSE) should collect and publicly report demographic data regarding people affected by state and local enforcement activities. This is especially urgent given that it may reveal possible civil rights violations. Where there is evidence of disparate harm affecting low-income parents of color caused by these child support enforcement policies and practices, the federal Department of Justice should pursue enforcement of the Title VI civil rights law.

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