While debtor prisons have long been outlawed, failure to pay a court-ordered fine or fee can get you locked up. But in a letter sent yesterday to state court administrators, the Department of Justice advises against using the penal system as a way to collect debts.

In the letter [PDF], the DOJ provides guidance intended to address “some of the most common practices that run afoul of the United States Constitution and/or other federal laws” and suggests “alternative practices that can address legitimate public safety needs while also protecting the rights of participants in the justice system.”

The DOJ has previously criticized some municipalities for using their court systems to generate revenue rather than mete out justice properly.

For example, in the department’s March 2015 report on its investigation into the Ferguson, MO, police department, the DOJ noted that the Ferguson municipal court “does not act as a neutral arbiter of the law,” but instead “primarily uses its judicial authority as the means to compel the payment of fines and fees that advance the City’s financial interests,” leading to practices that the DOJ says violate the Fourteenth Amendment’s due process and equal protection requirements.

Additionally, there are concerns that these sort of revenue-generating court practices are disproportionately affecting poor Americans who can’t pay their fines.

Though the DOJ can’t order the state courts to change their practices, the letter nonetheless provides guidance on ways these local courts can avoid abusing their authority.

Don’t Throw People In Jail If They Can’t Pay

Among the guidance offered in the letter, the DOJ says that courts should not incarcerate a person for nonpayment of fines without first figuring out if they can pay.

“[T]he Supreme Court has repeatedly held that the government may not incarcerate an individual solely because of inability to pay a fine or fee,” notes the letter, pointing to 1983 SCOTUS precedent, Bearden v. Georgia, in which the Supremes held that incarcerating poor people for failure to pay a fine “would deprive the probationer of his conditional freedom simply because, through no fault of his own, he cannot pay the fine. Such a deprivation would be contrary to the fundamental fairness required by the Fourteenth Amendment.”

More recently, SCOTUS held that finding a parent in civil contempt and jailing them for failure to pay child support without first checking to see if that parent can actually pay is violation of due process.

“To comply with this constitutional guarantee, state and local courts must inquire as to a person’s ability to pay prior to imposing incarceration for nonpayment,” writes the DOJ. “Courts have an affirmative duty to conduct these inquiries.”

Consider The Alternative

If someone can’t pay a fine, there are other ways to deal with them other than throwing them in jail, notes the letter, again citing Bearden, which requires the consideration of “alternatives to imprisonment.”

“These alternatives may include extending the time for payment, reducing the debt, requiring the defendant to attend traffic or public safety classes, or imposing community service,” the DOJ writes, pointing out that some states have already required courts to consider such alternative options.

For example, Georgia state law now clarifies that for “failure to report to probation or failure to pay fines, statutory surcharges, or probation supervision fees, the court shall consider the use of alternatives to confinement, including community service.”

The letter contends that courts should proactively consider these alternatives before an indigent defendant has missed payments, but warns against using community service and payment plans as a “means to impose greater penalties on the poor by, for example, imposing onerous user fees or interest.”

Don’t Make Defendants Pay Just To Get A Hearing

In the 1971 Boddie v. Connecticut ruling, the Supreme Court held that a state court violated due process by first requiring female welfare recipients to pay court fees before they could file divorce lawsuits, but the DOJ officials believe that the practice continues in other forms.

The letter gives the example of someone arrested for driving with a suspended license. The driver is also told to pay a $300 penalty for the infraction. The driver may want to explain their situation to the court, but in some courts, they must first pay that $300 before they can schedule a hearing. If the driver is unable to pay the fine, then they are denied access to the legal system.

“Regardless of the charge, these requirements can have the effect of denying access to justice to the poor,” states the letter.

Don’t Use Threat Of Arrest To Coerce Payments From Poor People

“The use of arrest warrants as a means of debt collection, rather than in response to public safety needs, creates unnecessary risk that individuals’ constitutional rights will be violated,” writes the DOJ. “Warrants must not be issued for failure to pay without providing adequate notice to a defendant, a hearing where the defendant’s ability to pay is assessed, and other basic procedural protections.”

Instead of arresting people as an effort to collect debts they may not be able to pay, the AG suggests that “courts should consider less harmful and less costly means of collecting justifiable debts, including civil debt collection.”

The letter also voices the DOJ’s concern about suspending driver’s licenses for non-payment of fines.

“Even where such suspensions are lawful, they nonetheless raise significant public policy concerns,” states the letter. “Research has consistently found that having a valid driver’s license can be crucial to individuals’ ability to maintain a job, pursue educational opportunities, and care for families. At the same time, suspending defendants’ licenses decreases the likelihood that defendants will resolve pending cases and outstanding court debts, both by jeopardizing their employment and by making it more difficult to travel to court, and results in more unlicensed driving.”

Hold Court Staff Accountable Too

While the image of a courtroom in some busy place with a steady stream of lawyers and defendants marching in and out all day, the fact is that many local courts in the U.S. have judges and magistrates that preside only a few days each week, leaving much of the daily work — setting bond amounts, issuing arrest warrants, among other important tasks — in the hands of clerks and other court staff.

“Without adequate judicial oversight, there is no reliable means of ensuring that these tasks are performed consistent with due process and equal protection,” warns the DOJ. “Regardless of the size of the docket or the limited hours of the court, judges must ensure that the law is followed and preserve ‘both the appearance and reality of fairness, generating the feeling, so important to a popular government, that justice has been done.'”

Things get more complicated when a jurisdiction allows for-profit third parties, like probation companies, to collect court fines and impose discretionary surcharges that go into their own coffers.

“Thus, the probation company that decides what services or sanctions to impose stands to profit from those very decisions,” notes the DOJ, pointing out that, nearly 90 years ago in Tumey v. Ohio, the Supreme Court prohibited arrangements in which a judge might have a pecuniary interest — direct or indirect — in the outcome of a case, and warning the courts that “The appointment of a private probation company with a pecuniary interest in the outcome of its cases raises similarly fundamental concerns about fairness and due process.”

In addition to the letter sent to the courts, the DOJ is making available $2.5 million in competitive grants through the Bureau of Justice Assistance. This funds are for state, local or tribal jurisdictions that are willing test new methods for assessing and enforcing fines and fees.

“The consequences of the criminalization of poverty are not only harmful – they are far-reaching,” said Attorney General Loretta Lynch in a statement. “They not only affect an individual’s ability to support their family, but also contribute to an erosion of our faith in government.”

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