In March 2016, the U.S. Department of Justice’s Civil Rights Division and Office for Access to Justice sent a “Dear Colleague” letter to State Court Administrators and Chief Justices in each state clarifying the legal framework that governs the enforcement of fines and fees, including the importance of procedural protections and, in appropriate cases, the right to counsel.
The Dear Colleague letter explains seven key principles:
- In order to incarcerate a person for nonpayment of fines or fees, courts must first determine whether that individual has the ability to pay and establish that failure to pay was willful.
- Courts must consider alternatives to incarceration for defendants who are unable to pay fines and fees.
- Courts must not condition access to a judicial hearing on the prepayment of fines or fees.
- Courts must provide meaningful notice and, in appropriate cases, counsel, when enforcing fines and fees.
- 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.
- Courts must not employ bail or bond practices that cause defendants to remain incarcerated solely because they cannot afford to pay for their release.
- Courts must safeguard against unconstitutional practices by court staff and private contractors.
In December 2017, Attorney General Jeff Sessions officially revoked the “Dear Colleague” Letter as well as the Advisory on Levying Juvenile Fines and Fees. Despite his action, several state Supreme Court justices have reaffirmed the validity of the Department’s original legal analysis.