DoJ Deals Massive Blow to Debtors’ Prisons, Poor People Can’t be Held When They Can’t Afford Bail

bailBy Justin Gardner

Last Thursday, the U.S. Department of Justice (DoJ) made the shocking statement that it will no longer use private prisons to incarcerate federal prisoners, saying they are less safe and less effective than government-run facilities.

This was welcome news for those who realize that for-profit prisons contribute to the problem of mass incarceration, but the feds still need to address the glaring issue of jailing people for victimless crimes such as drug use.

The effects on the prison-industrial complex were immediate, as stock values crashed for the Corrections Corporation of America and the GEO Group. Now, another DoJ ruling has the for-profit prison system reeling.

For the first time, the DoJ said in a federal appeals court that defendants cannot be held in jail solely because they can’t afford to pay bail.

“Bail practices that incarcerate indigent individuals before trial solely because of their inability to pay for their release violate the Fourteenth Amendment,” the agency said in an amicus brief. Not accounting for indigence results in “the unnecessary incarceration of numerous individuals who are presumed innocent.”

The move could strike a serious blow to the practice of debtors’ prisons, where local court systems prey on the populace by arresting and jailing poor people for failing to pay legal debts they can’t afford. This causes a vicious cycle of mounting debts from which people cannot escape.

Municipal courts establish contracts with private probation companies that harass indigent defendants for fines and fees. The practice of money bail has risen dramatically since 1990, part of a general trend of privatizing and profiting from every facet of the jail system.

In fact, the DoJ issued guidelines back in March that detailed several of these practices in the “criminalization of poverty.” They said municipal courts:

Must not jail a person for nonpayment of fines or fees without first conducting an indigency determination and establishing that the failure to pay was willful.

Must consider alternatives to jail for indigent defendants unable to pay fines and fees.

Must not condition access to a judicial hearing on the prepayment of fines or fees.

Must provide meaningful notice and, in appropriate cases, a lawyer, when enforcing fines and fees.

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.

Must not employ bail or bond practices that cause indigent defendants to remain jailed solely because they cannot afford to pay for their release.

Must safeguard against unconstitutional practices by court staff and private contractors.


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Alabama has been at the center of controversy, where private probation companies and several cities have been particularly ruthless in criminalizing and harassing poor people on the basis of simple fines and fees.

One county circuit judge explicitly called their situation a “debtors’ prison” and “judicially sanctioned extortion racket.”

Keeping people locked up because they can’t afford to pay bail as little as $160 actually contributes to the chances of dying in jail.

Many of the more than 800 jail deaths logged by The Huffington Post between July 2015 and July 2016 involved individuals who were incarcerated after being arrested for minor offenses and who were unable to afford their bail.

Naturally, the American Bail Association says that protecting the indigent from being held in a cage because they can’t afford bail is an “extreme position.” They insist that money bail is a “Liberty-Promoting Institution As Old As The Republic.”

As awareness grows about the sickening predation of poor people by a prison-industrial complex run amok, it appears the federal government is being forced to address the issue. Time will tell whether the DoJ court brief will have an impact on municipal courts violating civil liberties to pad their budgets and enrich their buddies in the bail business.

Justin Gardner writes for TheFreeThoughtProject.com, where this article first appeared.

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