DOJ’s Dear Colleague Letter is As Relevant As Ever. It’s Time We Remind Courts and Judges. 

by: Lisa Foster, Co-Executive Director of the Fines and Fees Justice Center

The U.S. Department of Justice has repeatedly warned state and local courts that their use and collection of court fines and fees could be unconstitutional. Now, they’re taking action. 

Most recently, the Department’s Civil Rights Division issued an urgent letter to the City of Lexington, Mississippi, demanding the city stop running a modern-day debtor’s prison. In Lexington, if a person is  arrested for any reason,  no matter how small, they are forced to remain behind bars until they can pay all outstanding fines and fees. Furthermore, the City’s Municipal Court judge signs arrest warrants for people who owe court debt, which the police use to jail even more people. Once jailed, the City charges an extra $50 “processing fee”, adding to the total people must pay to secure their freedom. DOJ has made it clear: these practices violate the Fourteenth Amendment of the United States Constitution. 

This month marks the 1 year anniversary of the DOJ’s 2023 “Dear Colleague” letter that admonished state and local courts to end their discriminatory and unconstitutional fine and fee practices and detailed the case law on the assessment and imposition of fines and fees. This letter was actually an update of one written roughly ten years ago. As the head of DOJ’s Office of Access for Justice, I worked with my counterpart at  the Civil Rights Division to author the original “Dear Colleague”  letter, sent to every state Chief Justice and Court Administrator in the country, as a warning that many of their fines and fees policies and practices were likely illegal.

Since then, a growing movement to end punitive and discriminatory fines and fees has taken off. More people are recognizing how harmful and counterproductive fines and fees are – including judges and lawmakers. Nearly half the country has eliminated some fees at either the state or local level and half the states have ended one of their most counterproductive and harmful collection practices – debt-based driver’s license suspensions.

And yet we know unconstitutional practices persist. Just last month, WXPR reported that the Vilas County, Wisconsin Clerk of Courts was planning to issue arrest warrants for people who have outstanding fines and fees, just like Lexington. No one even suggested that the policy was unconstitutional.

That’s why the Justice Department’s actions are so important. Courts and judges need to be reminded unequivocally and repeatedly — they can’t just lock people up when they can’t afford to pay. 

When the Justice Department speaks, people listen.  DOJ can investigate and bring enforcement actions. It also provides billions of dollars in state and local funding, money that can be withheld if a jurisdiction is engaging in unconstitutional or unlawful practices. As the authority on federal law and the U.S. Constitution, the “Dear Colleague” letter and DOJ’s actions give advocates powerful tools to use in our fight for meaningful reforms.

DOJ has given judges and policymakers a roadmap for reform. In our Decoding the Dear Colleagues Letter webinar, we examine the ways in which  DOJ’s actions can inform and bolster our advocacy efforts. 

Advocates can take the Department’s letters to their legislators, courts, and judges to demonstrate why fees – for both youth and adults – should be eliminated, why fines should never exceed a person’s ability to pay, and why draconian collection practices need to stop.  For litigators, the letters offer a blueprint for suing jurisdictions that continue to jail people who can’t afford to pay fines and fees,  deny them access to courts, counsel, or diversion programs or engage in discriminatory ticketing practices.

We know progress is possible – we’ve seen it firsthand – but we also know that fines and fees are deeply entrenched in our legal system. It will take the sustained effort of impacted individuals, communities, advocates, policy makers  — and the Department of Justice – to end the unjust imposition and collection of fines and fees.