Looking to close out 2017 with a bang, US Attorney General Jeff Sessions addressed the issue of discrimination head on, in one week repealing 25 “guidance letters,” mostly from the Obama era, which dealt directly with issues of discrimination. Sessions called the letters “unnecessary, inconsistent with existing law, or otherwise improper.”
Congress has provided a regulatory process in statute, and we are going to follow it. This is good government and prevents confusing the public with improper and wrong advice. [And] therefore, any guidance that is outdated, used to circumvent the regulatory process, or that improperly goes beyond what is provided for in statutes or regulations should not be given effect.
These 25 letters were not selected haphazardly. Sixteen involved civil rights protections, including 10 related to the Americans with Disabilities Act. There is consistency here with the actions taken by the Department of Justice in its work to downsize its departments working on civil rights and voting rights and immigrant rights. The enforcement of such “guidance letters” would certainly not align with the direction the Sessions Justice Department is taking.
Among them was a letter instructing lower courts to end the practice of sending poor people to prison when unable to pay fines for traffic tickets and other non-criminal acts. The issue of “debtor’s prison” received a great deal of attention when it was revealed three years ago, after the shooting in Ferguson, Missouri, that the city was using its criminal justice system as a for-profit enterprise, and garnering millions of dollars from its poorest citizens.
Even the local judge was in on it, imposing penalties of $302 for jaywalking and $531 for allowing weeds to grow in one’s yard. He issued arrest warrants for residents who fell behind on payments—including a 67-year-old woman who had been fined for a trash-removal violation—without inquiring whether they even had the ability to pay the exorbitant amounts. The arrests resulted in new charges, more fees and the suspension of driver’s licenses. These burdens fell disproportionately on African Americans.
These problems were not unique to Ferguson. A Georgia woman served eight months in custody past her sentence because she couldn’t pay a $705 fine. A veteran battling homelessness in Michigan lost his job when a judge jailed him for bringing only $25 rather than the required $50 first payment to court. A judge in Alabama told people too poor to pay that they could either give blood or go to jail.
In response to the Ferguson findings and those from other parts of the country, in 2015, the Justice Department convened judges, legislators, advocates, and community representatives who were affected by this to find solutions. Clarity of the legal rules on enforcement of penalties was repeatedly requested. These were the results, based on Supreme Court precedent from 30 years ago: Do not imprison a person for nonpayment without first asking whether he or she can pay. Consider alternatives like community service. Do not condition access to a court hearing on payment of all outstanding debt.
Along with private litigation and advocacy, these efforts have helped drive change around the country. Missouri limited the percent of city revenue that can come from fines and fees and announced court rules to guard against unlawful incarceration. California abolished fees for juveniles and stopped suspending the driver’s licenses of people with court debt. Louisiana passed a law requiring that judges consider a person’s financial circumstances before imposing fines and fees. Texas, where the court system’s administrative director said the guidance “was very helpful and very well received by the judges across the state,” issued new rules to prevent people from being jailed for their poverty. The American Bar Association endorsed the Justice Department’s guidance, and the Conference of State Court Administrators cited it in a policy paper on ending debtors’ prisons.
The success of this process seems to hold little sway with the current administration, and particularly with the current attorney general.
Reactions to the withdrawal of these letters have rippled across communities of color, LGBTQ communities, and disability rights groups, and will continue to do so as law enforcement and the courts are no longer compelled to uphold greater protections for those who are most vulnerable. The nonprofit community will definitely feel the impact, as the need for public defenders increases in the face of a rise in legal cases of discrimination. Disability rights groups will seek allies and coalition partners where they can, and civil rights and LGBTQ groups will gear up and regroup to defend the ground they gained, which has now become contested.
This may only be the beginning. As Jeff Sessions said, “We will continue to look for other examples to rescind, and we will uphold the rule of law.” As courts continue to overrule Trump and Sessions, the question of “whose ‘rule of law’” remains.—Carole Levine