Article: DOJ Rescinds Letter Cautioning Lower Courts on Fines, Fees for Poor Defendants

In his first year at the Department of Justice (DOJ), Attorney General Jeff Sessions has reversed numerous policies set by his predecessors in the Obama administration, in such areas as charging and sentencing policy, use of privately-run prisons, transgendered students’ rights, voting rights enforcement, and others.

A recent addition to the list of policy reversals came on December 21, when Sessions struck down 25 DOJ guidance statements, mostly from the Obama administration. According to Sessions, the rescinded statements were not only “outdated,” but also had been “used to circumvent the regulatory process” or had exceeded the authority of the laws or regulations on which they were supposedly based.

The Attorney General branded as a “longstanding abuse” such attempts to set rules by merely posting a statement on a webpage or publishing a letter, rather than going through proper legislative or rule-making procedures, Sessions’ review was prompted by a presidential executive order last March that created a Department of Justice task force for that purpose. The rescissions were also foreshadowed by a memo from Sessions last November which barred DOJ issuance of guidance documents which effectively change the law, create new rights, or impose new compliance standards.

Among the 25 rescinded statements was a “Dear Colleague” letter which DOJ civil rights officials sent to state chief justices and court administrators in March 2016 providing what they said was guidance “intended to address” what they deemed “some of the most common practices that run afoul of the United States Constitution and/or other federal laws” and to help court leaders assure fair and lawful operations in the operation of “courts at every level of the justice system.”

The March 2016 letter, which spoke of DOJ’s “strong interest” in protecting the rights of citizens, was seen by many as an invitation by DOJ to state courts to press county and municipal courts, as well as state court systems, to adhere to DOJ’s “guidance.” While DOJ’s letter was stated in general terms, cited some case law precedents, and omitted specific policy steps, it did mandate courts take actions such as to “consider alternatives to incarceration for indigent defendants unable to pay fines and fees.”

It also urged courts to review their policies on fines and fees in light of seven principles, which had been much discussed at a White House-DOJ “summit” following riots in Ferguson, Missouri, as well as in a DOJ-filed lawsuit which alleged Ferguson’s policing practices were intended to generate income for the city.

These principles also included not incarcerating persons for non-payment of fees or fines before determining whether they were indigent and the failure to pay had been willful. Further, arrest warrant and license suspension should not be used to coerce payment in ways that undercut constitutional rights, and bail practices ought not leave defendants in jail solely due to their inability to pay for release.

Advocacy groups quickly attacked rescission of the former guidance. Vanita Gupta, a former DOJ chief civil rights official who co-authored the guidance statement, now the president and CEO of The Leadership Conference on Civil and Human Rights, called it an “abdication” of DOJ’s duty to help courts comply with the law, which might encourage some to “resist reform.”