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American Bar Assn issues guidelines on ending debtor’s prisons

by | Aug 23, 2018 | Criminal Defense

Over 30 years ago, the U.S. Supreme Court ruled that people who cannot afford their court fees or fines should never be locked up for their inability to pay. Yet across the country, nearly half a million people sit in jail awaiting trial — often simply because they can’t afford bail.

Originally, bail was meant to ensure that people would appear at their court dates. Now, however, the system has morphed. Nowadays, wealthy people are nearly always released regardless of the charge, while poor folks typically find themselves trapped in jail even on minor charges. The time they spend locked away — before they’ve ever been convicted of anything — often costs them their jobs, housing and even child custody.

Bail systems disproportionately target the poor and people of color. Additionally, the conviction rate among people jailed before trial is significantly higher than for those who are not, especially because many people feel they have no choice but to accept plea bargains to get out — regardless of their actual guilt.

Keeping people in jail who are unable to post bail has another consequence that few realize. Nearly every jail now records all inmate calls to family, friends and even their lawyers in many cases. Increasingly, jails now restrict visits to inmates to video contacts, which are also recorded. The result is that poor people in jail who are unable to post bail are deprived of any chance to have private communications with family or friends.

Often, concerned family may ask the inmate for updates on what the person’s lawyer is telling them about strategy or evidence. Since these discussions are recorded and regularly monitored, the poor individual’s right to privacy and attorney client confidentiality is impaired. This amounts to a denial of equal protection when those wealthy enough to post bail face none of these consequences. 

Last month, Senator Bernie Sanders introduced the No Money Bail Act, which would prohibit money bail in federal cases and incentivize states to end cash bail. The bill is not thought to have much traction, however.

Now, the American Bar Association’s House of Delegates has voted unanimously to adopt 10 guidelines aimed at ending these modern “debtor’s prisons.” The 400,000-member lawyers group is hardly partisan; its members run the gamut from prosecutors and Federalist Society affiliates to criminal defense lawyers and members of the Black Lives Matter movement.

The organization’s “Ten Guidelines on Court Fines and Fees” are the product of a task force convened to address the growing public distrust in the justice system. It decided that the ABA needed to take a stand against the collection of fines and court fees through warrants, the suspension of driver’s licenses, pretrial incarceration and the separation of children from parents who can’t pay.

Examples of the guidelines include:

Guideline 3: “A person’s inability to pay a fine, fee or restitution should never result in incarceration or other disproportionate sanctions.”

Guideline 5: “Failure to pay court fines and fees should never result in the deprivation of fundamental rights, including the right to vote.”

Guideline 8: “An individual who is unable to afford counsel must be afforded counsel, without cost, at any proceeding, including ability-to-pay hearings, where actual or eventual incarceration could be a consequence of nonpayment of fines and/or fees.”

Across the nation, people are fighting to end this unjust system and return to the constitutional principles this country was founded on. Let’s hope the ABA’s new guidelines have a profound effect on the money bail system.

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