Americans enjoy the greatest criminal justice system ever known to civilization. Every person is entitled to a lawyer if facing incarceration, accorded due process when liberty is at risk, and assured freedom from unwarranted searches and seizures — to name just a few of the individual liberties we enjoy in our democracy.
Yet, we still have serious problems. Disturbing disparities are coming to light via U.S. Department of Justice investigations.
The March 2015 investigation in Ferguson, Mo. revealed the improper incarceration of poor people because of their inability to pay questionable fees and costs. Imposing such financial sanctions without an ability-to-pay determination is illegal.
However, this sort of injustice is not limited to Ferguson. These are some of the cases that happened in Kentucky:
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■ A poor elderly man whose fourth-degree assault was diverted but whose court costs were not waived by the court, and so he was left to ask churches for help putting food on his table.
■ A DUI defendant unable to pay $1,008 costs and fees was required to serve 20 days. Defendants not released from jail until payment of a $40 arrest fee assessed by the sheriff.
■ Poor people given "pay or stay" warrants and then jailed for failure to pay a fine without any representation by a lawyer.
■ Defendants who fail to ask for more time to pay fines/fees and are jailed for 180 days, or can't pay for their $35/day home-incarceration bracelets and are returned to jail.
■ Probation has been revoked because defendants are unable to get transportation to their drug tests or are unable to pay for them.
■ Diversion programs which carry fees of $400.
■ Courts refused to waive costs for clients with long prison sentences.
■ Courts setting cash bonds so high that defendants can never post them (often with the apparent intention of ensuring continued incarceration) and then continuing their arraignment for days until the defendant is willing to plead to anything, often foregoing legitimate defenses in order to get out of jail.
Recently, the National Association for Public Defense issued its "Policy Statement on the Predatory Collection of Costs, Fines, and Fees in America's Criminal Courts," urging an end to assessing excessive fines and fees to fund government operations.
The association called upon the judiciary to embrace its responsibility to protect the poor from being jailed when they are unable to pay the expanding fines and fees and oppressive monetary bonds set in criminal cases.
Kentuckians should heed this call. Appropriately, many judges routinely waive fines and costs for indigents, and do not impose monetary bail. When fees are imposed and unpaid these many judges conduct ability-to-pay hearings with appointment of an attorney and they facilitate alternatives rather than demanding immediate payments.
However, there are other judges who not only refuse to waive fines and costs, but impose money bail that poor people cannot pay. Fines should never be assessed against an indigent. Costs should not be assessed absent an ability to pay, and no poor person can be constitutionally jailed if unable to pay.
A $200 cash bond is an unattainable amount of money for a poor person. Stuck in jail, many lose their jobs, see their families go hungry, watch spouses leave them, or lose their health care or the homes in which they live.
Progress is possible. A federal court in Missouri recently ordered St. Louis County Municipality to end its practice of cash bail.
A fair and balanced system of pretrial release ought to be color-blind, especially when that color is green.
The incarceration of low-risk persons for a short period of time is counterproductive. It is not necessary for public safety and it wastes taxpayer money. We don't have to go far to see the waste. Fayette ranks last among Kentucky's 120 counties in pretrial release, with many low and moderate risk people confined in its jail.
Our great criminal justice system is not faultless. Like Ferguson, Kentucky has unjust practices that must be remedied now for the words of our pledge of allegiance "with liberty and justice for all" to have full meaning.