Update: On November 9, 2017, thousands of arrest warrants against people alleged to have not paid fines or appeared in court for low-level offenses in South Carolina were recalled in response to a training by Chief Justice Donald Beatty on the right of indigent defendants to counsel before incarceration. In Brown v. Lexington County, the ACLU challenges the unlawful use of these “bench warrants” to arrest and jail poor people who cannot afford to pay money to courts.
Just ask Nora Ann Corder, who spent a whopping 54 days locked up in jail in Lexington County, South Carolina, simply because she could not afford to pay $1,320 in traffic fines and fees. A desperately poor woman, Ann was arrested, handcuffed, and taken to jail only minutes after she arrived in court to fight an eviction action because she couldn’t make rent.
Ann is a victim of Lexington County’s debtors’ prison. But in jail, she learned there was a way to fight back. On June 1, the ACLU filed a lawsuit challenging the unlawful arrest and jailing of indigent people who could not afford to pay fines and fees to Lexington County’s magistrate courts. Two days after her release from jail, Ann joined the lawsuit as a plaintiff.
In Lexington County, rich people can buy their freedom, while poor people are locked away — without any hearing in front of a judge or representation by counsel. Their incarceration only compounds their troubles — causing their children and families to suffer, their jobs to disappear, and their chances of escaping poverty to become even more remote. Plaintiff Twanda Marshinda Brown wrote movingly about being separated from her 13-year-old son and losing her job when she was locked up for 57 days.
Ann fared no better. Fifty-four days in debtors’ prison crippled her ability to fight eviction or hold on to her job at a Waffle House. Upon her release, Ann was homeless and jobless.
We all want a justice system that is fair and provides equal treatment to rich and poor. This is why the Supreme Court ruled more than 30 years ago that people should not be locked up behind bars solely because they are unable to pay court fines and fees they cannot afford. In the case of Danny Bearden, an indigent probationer who faced incarceration for nonpayment of $550 in fines and restitution, the Supreme Court held that “it is fundamentally unfair to revoke probation automatically”—which would lead to incarceration—“if the probationer has made all reasonable efforts to pay the fine or restitution, and yet cannot do so through no fault of his own.”
Yet since 2010, the ACLU has repeatedly shown that poor people have been arrested and incarcerated in violation of basic rights to fairness and equal treatment under the law when they cannot pay court fines and fees in Arkansas, Colorado, Georgia, Michigan, Mississippi, New Hampshire, Ohio, Texas, and Washington.
But even among the debtors’ prisons exposed by the ACLU, Lexington County stands out as particularly cruel because of the extraordinary length of time for which indigent people are thrown in jail when they cannot afford to pay.
The plaintiffs in our case against Lexington County were locked away for periods of time ranging from 20 to 63 days when they could not pay $647.50 to $1,907.63 in court fines and fees. In contrast, ACLU plaintiff Kevin Thompson was jailed for five days in Georgia because he couldn’t pay more than $800, and ACLU plaintiff Qumotria Kennedy was jailed for five days in Mississippi when she couldn’t afford to pay around $1000.
Take a moment to let that sink in. People have been locked up for two months in Lexington County because they did not have money to pay court fines. This flies in the face of an increasing recognition that jailing people because of their poverty is not only unconstitutional, it’s also wasteful and counterproductive.
Earlier this year, the National Task Force on Fines, Fees, and Bail Practices, a top organization of state court leaders, issued a bench card on the “Lawful Collection of Legal Financial Obligations” — a commonsense, step-by-step guide for state and local judges to use to protect the rights of poor people who cannot afford to pay court fines and fees. These court leaders sent a message to judges and elected officials: Courts are not ATMs for local and state governments, and judges should respect constitutional rights of the poor.
One state got the message.
Last month, the Supreme Court of Missouri adopted the National Task Force bench card, incorporated it into Missouri court rules, and required it to be sent to judges, court clerks, and court staff across the state. It followed in the footsteps of Ohio, Washington, and Michigan, which had already enacted similar guidelines for judges. This was the right thing to do in light the U.S. Department of Justice’s scathing 2015 report on the debtors’ prison in Ferguson, Missouri.
Lexington County and its justice system leaders can never give Ann back the 54 days of her life spent in jail or the home or job she lost while incarcerated. But they can forge a new path by adopting the National Task Force bench card as well as the sorts of reforms embraced by cities like Biloxi, Mississippi, which has pioneered efforts to end debtors’ prisons following litigation by the ACLU.
Common sense solutions to debtors’ prisons abound. It is up to Lexington County and its court leaders to act on them.