FFJC’s Lisa Foster joins Democracy Now! to explain implications of SCOTUS excessive fines ruling

Following the Supreme Court’s unanimous ruling in Timbs v. Indiana, Democracy Now! invited FFJC’s Lisa Foster to explain the implications of this groundbreaking decision regarding the Excessive Fines Clause. Below, you can find the full video recording of Lisa’s commentary, as well as a complete transcript via Democracy Now!.

NERMEEN SHAIKH: In a major victory for civil liberties advocates, the Supreme Court has unanimously ruled to limit the practice of civil asset forfeiture—a controversial practice where police seize property that belongs to people suspected of crimes, even if they’re never convicted. On Wednesday, the court ruled the Eighth Amendment protects people from state and local authorities imposing onerous fines, fees and forfeitures to generate money.

The case centered on an Indiana man, Tyson Timbs, who had sold drugs and was sentenced to prison. Timbs didn’t contest his sentence, but he did object to police seizing his Land Rover. The vehicle was worth $42,000, more than four times the $10,000 maximum fine Timbs could receive for his drug conviction under state law.

AMY GOODMAN: On Wednesday, the Supreme Court unanimously ruled in Tyson Timbs’ favor. Writing on behalf of the justices, Ruth Bader Ginsburg said, quote, “The historical and logical case for concluding that the 14th Amendment incorporates the Excessive Fines Clause is overwhelming,” unquote.

The American Civil Liberties Union has called civil asset forfeiture a violation of due process that disproportionately targets communities of color. After Wednesday’s ruling, the ACLU tweeted, quote, “This will help stop state and local authorities from using people in the justice system as their piggy banks.”

For more, we go to Washington, D.C., where we’re joined by Lisa Foster, co-director of the Fines and Fees Justice Center. Her group, along with others, filed an amicus brief in the Supreme Court case. Lisa Foster is a retired California judge. She served in the Justice Department during the Obama administration and led the department’s efforts to address excessive fines and fees.

Lisa Foster, welcome to Democracy Now! Why don’t you lay out the significance of this unanimous decision of the Supreme Court?

LISA FOSTER: Good morning, and it’s a pleasure to be here.

The Supreme Court, forcefully, told state and local governments that the excessive fines clause applies to their fines, fees and forfeitures. And they said it, as you pointed out, unanimously. That’s critically important. As even a casual observer of the Supreme Court knows, it’s rare these days for the court to be unanimous. And all of the justices agreed not just that the excessive fines clause applies to state and local government, but also with the analysis that Justice Ginsburg provided.

And there are really a couple of points that are critical in her analysis. First, of course, she decided it applies to state and local governments. But, second, when she was going through her opinion, she provided a historical analysis of the excessive fines clause and concluded by explaining why the cause is still important today. And she gave two examples. One is because government could impose excessive fines to punish dissent—people it doesn’t like or behaviors it doesn’t like—and do that excessively. But, second, and I think most importantly, she talked about the fact that state and local governments today are using fines, fees and forfeitures to raise revenue. And she found that to be a reason to continue to enforce the Eighth Amendment prohibition against excessive fines.

For that proposition, she cited the late Justice Scalia, who warned about government raising revenue through the justice system, and, I’m proud to say, she cited the amicus brief that our organization, Fines and Fees Justice Center, as well as the ACLU, the R Street Institute and the Southern Poverty Law Center, filed in the case. And we explained in that brief what is happening today in state and local government and why that is harming so many Americans, millions of Americans, and particularly low-income Americans and Americans of color.


LISA FOSTER: So, that’s one—go ahead.

NERMEEN SHAIKH: Well, in her opinion, Ruth Bader Ginsburg noted the troubling role of excessive fines in America’s history. She wrote, quote, “Following the Civil War, Southern States enacted Black Codes to subjugate slaves and maintain the prewar racial hierarchy. Among these laws’ provisions were draconian fines for violating broad proscriptions on ‘vagrancy’ and other dubious offenses.” So, Lisa Foster, could you talk about the history of this?

LISA FOSTER: Certainly. And that history, both Justice Ginsburg and Justice Thomas, in his concurring opinion—both wrote at length about the history of the excessive fines clause, which really goes back to the Magna Carta, but their emphasis on the fact that after the Civil War excessive fines were used by Southern states really to re-enslave black people. Southern states passed vagrancy laws, all kinds of provisions, and imposed very steep fines on people who violated those laws, and, when they couldn’t pay those fines, then literally sold people to private companies for labor. It was convict labor. And that was a notorious practice throughout the South and even in some Northern states, during Reconstruction and after.

That is important, because, today, fines, fees and forfeitures disproportionately affect black people and other communities of color in the United States. And by citing that history, the Supreme Court says to the states, “We understand what’s happening, and that’s a reason to be particularly concerned about the imposition of these excessive fines.”

NERMEEN SHAIKH: Well, Lisa, could you also—could you just explain in what cases it’s considered justified for local and state authorities to impose fines?

LISA FOSTER: Almost every case. So, a fine is a monetary sanction for the violation of a law. And for many offenses, fines are the only sanction. So, for example, if you get a speeding ticket. It’s against the law. No one’s going to send you to jail, or at least they shouldn’t, for speeding. So we impose a fine. Fines are imposed in traffic cases. They’re imposed in civil code violations, municipal code violations. They’re also the principal way that we sentence people in misdemeanors and, often today, in felonies.

And what’s happened over the last 30 years is that the amount of those fines has dramatically increased, and so have the fees that go with those fines. And fees are not supposed to be a sanction, but they’re imposed by state and local government to pay for the cost of the justice system and other government services.

AMY GOODMAN: So, I want to go back to 2015. More than a dozen St. Louis-area residents filed a class-action lawsuit against Ferguson and another suburb, Jennings. They accused local officials of creating a, quote, “modern debtors’ prison scheme” that targets African Americans with arrests and fines and then locks them up when they can’t pay. Democracy Now! spoke to Allison Nelson, one of the plaintiffs in the class-action lawsuit.

ALLISON NELSON: There were multiple occasions where I was incarcerated by Jennings and Ferguson. But just my recent one, it was Thanksgiving. It was three days before Thanksgiving. I was incarcerated, and it’s a Jennings jail cell. I had been there for three days. And once I left Jennings—well, they negotiated with my mother over the phone to reduce my bond from $1,000 to $100. And then, once they reduced the bond, then I was then transferred to a Ferguson jail cell Thanksgiving morning at around 3 a.m. And I sat there for a few hours, and then, once they had a shift change and the other CO came in, the correctional officer came in, I guess he was in a good mood Thanksgiving morning, because he came in, called out a list of names, and he was just like, “OK”—at the time, my bond was $700, and he was just like, “Oh, if you could come up with $100, then you could go home.” So then we weren’t given free phone calls at all, so I had to call my mother on the collect phone. And when you’re supposed to speak your name, I had to yell through the phone that, “Oh, they’re giving me a $100 bond, come and get me.” So, it was—

AMY GOODMAN: What were you charged with, Allison?

ALLISON NELSON: I was charged with—what was I—it was driving—

MICHAELJOHN VOSS: Driving while suspended.

ALLISON NELSON: It was driving while suspended. Yeah, it was driving while suspended.

AMY GOODMAN: Driving while suspended. That’s Allison Nelson, one of the plaintiffs in the class-action lawsuit, speaking to Democracy Now! in 2015. Lisa Foster, if you could talk about the 2016 letter you wrote on this whole issue, and also—this is while you were at the Justice Department—as well as the action Jeff Sessions took when he became attorney general?

LISA FOSTER: Allison’s story is precisely why we wrote the letter that we did, what’s colloquially referred to as the “Dear Colleague” letter. After the uprising in Ferguson, after Michael Brown was killed, the Justice Department’s Civil Rights Division investigated the Ferguson Police Department. And what they found was appalling. Ferguson was using the justice system to raise revenue. Twenty-three percent of the city’s revenue came from fines and fees imposed by the municipal court in Ferguson. And Ferguson city officials were telling their police officers to raise revenue, go out there and ticket people, which the police department did, largely in the community’s African-American neighborhoods. And so they were imposing multiple tickets. You would be stopped for a traffic offense, and often four or five different tickets issued. People were cited for high grass and weeds growing too high on their front lawn. And if they couldn’t pay immediately in Ferguson, they were sent to jail, just like Allison was. That’s unconstitutional. The Supreme Court, back in 1983, said that you cannot punish someone simply because they cannot afford to pay a fine. You have to punish someone only because what they did was willful: They could afford to pay it, and they chose not to. But that’s not what was happening in Ferguson. Ferguson residents were being charged these excessive fines; they couldn’t pay them, and they were sent to jail. That is debtors’ prison.

And so, the department brought together people from all over the country—judges, legislators, activists, lawyers—and tried to determine what it was the department could do to try to reform fines and fees in the United States. And one of the things that people asked of the department, particularly state judges and state legislators, was for guidance, some explanation of the law that applies to the issues of fines and fees. And so, together with Vanita Gupta, who was then the acting director of our Civil Rights Division, we wrote a letter. And we set out some black letter law, basic constitutional principles and federal legal principles, that are supposed to inform the way that fines and fees are imposed and enforced. And we sent that letter to every state chief justice and every state court administrator. And I have to say, it was well received. Many supreme court justices or chief justices sent the letter out to their entire bench, every judge in the state. In Arizona, the chief posted the letter online. And judges all over the country realized that what they had been doing was unconstitutional.

Now, fast-forward to the new administration, and Attorney General Jeff Sessions, fairly early on in the administration, announced that he was retracting that letter, together with several other pieces of guidance that the Obama administration had issued. I don’t think it had the effect that he intended, because many, many state supreme courts, particularly the chief justices, reinforced to their judges that despite the actions of the attorney general, that “Dear Colleague” letter still applied in their states.

NERMEEN SHAIKH: And do you expect the new attorney general, William Barr, to address the issue differently?

LISA FOSTER: No. I don’t think the department sees its role as advising the states or working with the states to change these practices.

AMY GOODMAN: I wanted to go back to 2016, when we spoke to a woman named Janice, a native of Little Rock, Arkansas, who said she wrote a check for $1.07 for a loaf of bread, that bounced. The debt ballooned after fees and fines to nearly $400. Janice spoke to Democracy Now! on condition of anonymity from fear of arrest. I want to go to that clip.

JANICE: On several occasions, I have been arrested by Sherwood Police Department for bounced checks, insufficient funds checks. I’ve even been arrested on my job—two different jobs, as a matter of fact, one—with two different hospitals. My checks has totaled, I would say, less than $1,000 worth of checks. And they’re little, small checks. I was a bad manager. I didn’t keep a good register, so, therefore, I had bounced checks. Some were $20. Hundred dollar may have been the highest number of checks that I wrote. But I have had accumulated fees, up to thousands of dollars in fees and costs, on roughly less than $1,000 worth of checks.

AMY GOODMAN: So, that was Janice in Little Rock, Arkansas, speaking to us a few years ago. So, what happens now with people like Janice and everyone else as a result of this? And you can comment on this outside of this particular decision, a unanimous Supreme Court decision, across the political spectrum, what this means in this day and age, Lisa Foster.

LISA FOSTER: So, what it means is that advocates around the country now have a new tool to use to end of the imposition of fees and excessive fines and forfeitures in the justice system. They can go to state and local governments and talk about the Supreme Court opinion, and, if necessary, they can sue state and local governments who impose excessive fines, fees and forfeitures.

The stories—Alison’s story and Janice’s stories—are, unfortunately, stories of millions of people around the country. Let me just give you one example. In California, the fine for running a red light—you raced that yellow light, and you lost—the fine is $100. That’s what the Legislature says is the sanction for running the red light. But that’s not what you owe the state of California. If you’re convicted of running a red light, you owe $490, because the California Legislature attaches an additional $390 of fees to that $100 fine. The average American doesn’t have $400 in the bank for an emergency. So how are they supposed to come up with $490 to pay to the state? And truthfully, if you’re a low-income person, you can’t do that, at least not right away.

And what happens around the country, if you can’t immediately afford to pay your fines and fees, is exactly what happened to Allison and Janice. The amounts go up, and, in 43 states, your driver’s license is suspended. Now, it’s counterproductive to suspend somebody’s drivers license because they didn’t pay a debt, because, of course, 90 percent of Americans drive to get to work. So, if we you take away their license, we take away their means of earning a living to pay back the debt. And so, many Americans drive even while their license is suspended, because they have to go to work, they have to get their kids to school, they have to get a family member to the doctor. And if they’re stopped by law enforcement for driving on a suspended license, it’s a misdemeanor. Now they have a criminal record. More fines and fees are imposed. And we’ve created an endless cycle of punishment and poverty. That is happening all over this country today. And this case gives advocates a new tool to fight those practices.

AMY GOODMAN: Lisa Foster, we want to thank you for being with us, co-director of Fines and Fees Justice Center. Her organization, along with others, filed an amicus brief in the Supreme Court case Timbs v. Indiana. She’s a retired judge, former director of the Office for Access to Justice at the U.S. Department of Justice.