Unequal Justice

December 13, 2016

Providing equal justice for poor and rich, weak and powerful alike is an age-old problem. People have never ceased to hope and strive to move closer to that goal. — Griffin v. Illinois, 351 US 12, 16 (1956)

Executive Summary

Over 30 years ago in Bearden v. Georgia, the United States Supreme Court issued a seminal ruling that to imprison someone because of their poverty and inability to pay a fine or restitution would be fundamentally unfair and violate the Equal Protection Clause of the Fourteenth Amendment. Yet today, courts across the United States and Nebraska routinely imprison people because of their inability to pay. This practice has been termed a “modern-day debtors’ prison.” This practice happens at various points in the criminal justice system. First, it can happen to people who are awaiting trial. Individuals are forced to sit in jail while their case proceeds because a bail amount has been set beyond their ability to pay while those with financial resources regain their freedom to go to work, school and be with their families while awaiting trial. Second, some people who have been adjudicated and found guilty end up in jail even though they were not sentenced to jail time because they are unable to pay a fine and are imprisoned instead to “sit it out.”

The end result of these systems: a maze with dead-ends at every turn for low-income people.

In this report, the ACLU of Nebraska presents the results of its investigation into Nebraska’s modern-day “debtors’ prisons” and bail practices. The report shows how, day after day, low-income Nebraskans are imprisoned because they lack the ability to pay bail or pay fines and fees. These practices are illegal, create hardships for those who already struggle, and are not a wise use of public resources. Debtors’ prisons result in an often fruitless effort to extract payments from people who may be experiencing homelessness, are unemployed, or lack the ability to pay.

The ACLU of Nebraska investigated the imposition of bail as well as the imposition of court fees and fines. Our survey focused on the four largest counties (Douglas, Lancaster, Sarpy and Hall), using open records requests, court record review, interviews with people involved in the system with additional in-court observations in Douglas, Lancaster and Sarpy Counties.

Key Findings

Nebraska doesn’t have as many problematic practices as found in other jurisdictions. Some states have notorious abusive practices such as private bondsmen who use dangerous tactics to apprehend low-level offenders, staggeringly high interest rates and late fees that make it nearly impossible to ever pay off court costs, and additional fees for serving jail time or applying for a public defender. Therefore we believe Nebraska is well positioned to reform our system to remedy the harms currently being inflicted on people who are poor.

Human Costs

Image of Janet Vashon, a 46 year old woman who recently experienced homelessness.

Read about Nebraskans impacted by fines and fees in our criminal justice system.

Being held in jail comes with devastating human costs for low-income Nebraskans. Being held in jail while awaiting trial means one is more likely to be found guilty and more likely to receive a stiffer sentence. People who are in jail—whether pretrial or whether sitting out a fine—face significant disruption to their lives. Before they even get to trial, Nebraska defendants charged with nonviolent offenses spend an average of 48 days behind bars. Being imprisoned has a destabilizing impact on their jobs, their children, and their wellbeing. These burdens fall on people who were already struggling and at risk. It is well documented that racial disparities exist at every stage of our criminal justice system. This research shows a clear and disturbing overrepresentation of people of color behind bars in Nebraska as well.

Waste of Taxpayer Money and Resources

Incarcerating low-income people prior to trial or requiring an indigent defendant to sit out a fine costs much more than counties actually recoup. Our study revealed that over half of the county jail populations were pretrial people—Nebraskans presumed innocent but unable to afford bail to go home. At the same time, several counties are facing overcrowded jails and are burdened by paying other counties to take their inmates. Indigent defendants sitting out a fine are doing so at taxpayer expense—it costs between $80-90 per day per inmate, depending on the county involved. The annual costs to run the jails in our four largest counties will reach over $73 million in 2017. Both practices strain county budgets and burden taxpayers unnecessarily.

Jailing the Poor Creates a Two-Tiered System of Justice

Bail should be limited to people who pose a true risk to public safety or who present a concrete flight risk. All other defendants should be allowed to go home on their own recognizance. Instead of an individualized assessment of dangerousness and flight risk, Nebraska is reflexively placing a cash bail amount for most defendants. This means the wealthy go home while the poor remain behind bars, though studies show there is no rational basis to treat the poor more harshly. Similarly, when a wealthy defendant is sentenced to pay a fine, they can do so and go on their way while a poor defendant without the means to write a check must sit in jail. Nebraska deducts $90 per day served from court fines, so even a nonviolent misdemeanor offense can result in many days in jail. These practices mean the poorest defendants are punished more harshly than those with money.

Recommendations

The ACLU of Nebraska has made recommendations to judges, police and policymakers to remedy the serious abuses that have resulted in a system of unequal justice. These recommendations are based on proven models in other jurisdictions and seek to ensure that all people—regardless of their economic position—are treated fairly and equally.

Criminalization of the Poor

Nearly two centuries ago, the United States formally abolished the incarceration of people who failed to pay off debts. However, recent years have witnessed the rise of modern-day debtors’ prisons—the arrest and jailing of poor people for failure to pay legal debts they can never hope to afford, through criminal justice procedures that violate their most basic rights. Some people sit in jail while still presumed innocent—only because they don’t have the money to post bail.

An overwhelming majority of Nebraska jail inmates are deemed indigent. As we examined how court processes impact people who are poor, we found that the system often punishes defendants simply for not having money. Poor defendants in the criminal justice system are much more likely to experience incarceration because they lack the resources to pay fines or post bail, not because of the severity of their alleged crime.

This report looks at the monetary bookends of the criminal justice system: first, how bail is set when one is first arrested and second, what happens when one is found guilty and ordered to pay a fine and court fees.

Arrestees are presumed innocent and, for most offenses, may be allowed to go home to their family while they wait for their trial. They can do so if they post bail, which is set in the form of a cash amount. Immediately upon arrest, before a defendant is seen by a judge for an individual assessment, the bail amount is determined by a “schedule” that provides set bail amounts for particular offenses. These schedules vary widely from county to county. After the amount is set, a defendant may also go in front of a judge and request a lower amount. This report will first describe the current bail practices in Nebraska and how they impact the poor.

People who are found guilty of misdemeanors and traffic offenses are often not sentenced to do time—they are given a sentence of a fine, including court costs. Court costs can vary from $49 to $500. For example, if a defendant calls a witness they will ultimately be asked to pay the witness fee. In reality, many indigent people end up serving time behind bars simply because they cannot afford to pay those costs. This practice is known as “debtors’ prison,” and it is pervasive throughout the state. The report will also look at fines and fees collection and how it impacts the poor.

Both of these practices are economically inefficient since taxpayers pay thousands of dollars for defendants to sit in jail for days, weeks, and months. Debtors’ prison is a particularly illogical practice since the court costs and fines imposed ultimately do not generate income—rather, taxpayers pay for inmates to be incarcerated.

These practices don’t just impact the defendant and taxpayers—they ultimately affect the families and children of the defendant. Voices for Children Nebraska documented that one in ten children in Nebraska have a parent behind bars, and the effects of this experience often lead to economic and psychological instability for the child. Parents who cannot post bail or who are sitting out a fine in jail may lose their job, fail to meet a crucial bill deadline, and face eviction or loss of utilities. These all impact the entire family’s likelihood of financial stability and success.

These burdens fall on those who were already poor to start with, as those in the criminal justice system tend to be low income. “People convicted of felonies tend to be financially worse off before arrest and conviction than those not connected to the criminal justice system, and defendants tend to have higher unemployment rates than nondefendants…Nationally, the earned annual income of two-thirds of jail inmates was under $12,000 in the year prior to arrest.”

For this study, the ACLU examined court records from the four largest counties in Nebraska (Douglas, Lancaster, Sarpy and Hall) and personally observed county court arraignments and sentencings in the three largest counties (Douglas, Lancaster and Sarpy). In addition, we interviewed criminal defense attorneys across the state and other stakeholders. Through this research, we repeatedly found people sitting in jail simply for being poor and not being able to pay a couple hundred dollars in bail, fines or fees.

This practice is out of step with clear caselaw. The Department of Justice has begun to intervene in cases involving the criminal courts’ imposition of financial burdens on the poor and has stated, “incarcerating individuals solely because of their inability to pay for their release, whether through the payment of fines, fees, or a cash bond, violates the Equal Protection Clause of the Fourteenth Amendment.” In March 2016, the Department of Justice issued guidance to all judges, calling for reform. The DOJ has enunciated several principles relevant to current Nebraska practices, including:

Courts must not employ bail practices that cause indigent defendants to remain incarcerated solely because they cannot afford to pay for their release.
Courts must not incarcerate a person for nonpayment of fines or fees without first conducting an ability to pay determination and establishing that the failure to pay was willful.
Courts must provide meaningful notice and, in appropriate cases, counsel when enforcing fines and fees.
Courts 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.

The report suggests ways Nebraska can come into compliance with the Department of Justice’s guidelines. The good news is that Nebraska doesn’t have as many problematic practices as many sister states. Some states have practices such as private bondsmen who use dangerous tactics to apprehend low-level offenders, high interest rates, late fees that make it nearly impossible to ever pay off court costs, and additional fees for serving jail time or applying for a public defender. While our system needs a significant overhaul, we are thankfully free of many of the shocking abuses documented in other states. Nebraska is well positioned to take immediate steps to protect the rights of people who are poor trapped in a cruel maze created by our criminal justice system.

Bail Reform

Bail refers to the amount of money a person has to pay to be released from jail after being arrested. Usually, a defendant pays ten percent of the total bail amount set by the judge. For instance, if $50,000 is set as bail, the defendant must pay $5,000 to go home.

Money bail should only be required when the prosecutor, after an individualized hearing, demonstrates the defendant’s release poses a significant danger or flight risk. As the Department of Justice has said, “Bail that is set without regard to defendants’ financial capacity can result in the incarceration of individuals not because they pose a threat to public safety or a flight risk, but rather because they cannot afford the assigned bail amount.” The presumption should always be in favor of release.

Over half of those in Lancaster, Sarpy, and Hall County jails on the days of our study had not been convicted of a crime.

Current Nebraska law limits bail to those cases where a defendant might leave the jurisdiction or might hurt someone while free: “Any bailable defendant shall be ordered released from custody pending judgment on his or her personal recognizance unless the judge determines in the exercise of his or her discretion that such a release will not reasonably assure the appearance of the defendant as required or that such a release could jeopardize the safety and maintenance of evidence or the safety of victims, witnesses, or other persons in the community.”

Unfortunately, from our research it appears Nebraska courts aren’t routinely enforcing this presumption of release based on individualized factors. Instead, courts are treating all defendants the same based on the alleged crime rather than the defendant’s personal circumstances, or they are reflexively complying with requests for high bail amounts made by prosecutors.

The fallacy of our current bail system is that a mere dollar amount does nothing to ensure public safety or the guaranteed appearance of a defendant for trial. For example, a wealthy criminal defendant charged with a more serious crime may be able to post bail because he has financial resources. Meanwhile, a criminal defendant living in poverty who poses less risk must stay behind bars. Under this system, the only guaranteed outcome is the over-criminalization of people in poverty.

One’s wealth isn’t an indicator of how likely he or she is to appear in court for her court date. In fact, studies have shown that people released on their own recognizance without any money bail appear in court more often and defendants released on cash bail actually have higher failure to appear rates. It appears that Nebraska judges may currently impose bail not due to a fear of actual flight risk to another jurisdiction to avoid prosecution but simply due to a fear the accused may not show up for court dates. While a failure to appear imposes inconvenience and cost on the court system and witnesses, a failure to appear is not the same as fleeing.

Our current bond and fine systems criminalize poverty. Pretrial release programs which screen people for risk factors and can assess the level of supervision needed, are more effective at assuring someone appears in court than simply rewarding the person who can come up with a set amount of money. For one person, $100 is the same as $10,000 for another. One night in jail can mean the loss of a job, housing, and custody of children. If a bond requiring money is set, the primary factor considered by the court must be the person’s ability to pay. Our current system discriminates against the poor.
Joe Nigro, Lancaster County Public Defender

Many defendants do not show up for court because of unavoidable child care or work conflicts or because they were fearful and confused about the process. These issues can be resolved without using pretrial detention, and Nebraska has already had firsthand experience on how to ensure appearance in court. From 2009 to 2010, the Nebraska State Bar Association implemented a pretrial reminder pilot program in 13 counties and proved that a simple reminder postcard significantly lowered the number of people who failed to appear for court.

Some Nebraska counties currently offer a pretrial release that is contingent upon technological surveillance methods, including interlock devices on vehicles to test the driver’s alcohol usage and ankle monitors. Pretrial surveillance raises independent privacy and fairness concerns. Not only is it intrusive, it has often proven to be ineffective. For these reasons, most individuals who are pretrial should not be subjected to such monitoring. But for certain people, these devices could be among the least restrictive conditions necessary to ensure their return to court. Currently, however, all these devices come with a price tag that must be borne by the defendant, which only exacerbates the inequalities of the cash bail system. Officials in Lancaster County’s pretrial release program indicated they make every effort to provide no-cost technology options for defendants when the county is able to do so, though indigent defendants don’t have these options across the state. To the extent the state could devise a system that reliably determines the rare individuals who require pretrial monitoring, the fact that many rural counties have no such technology-based solutions raises concerns about disparate justice.

The Vera Institute reports that, nationally, 60% of jail inmates are pretrial, meaning either they have been denied bail or, more frequently, are unable to post bail. Out of our sample, we found that over half of inmates in Nebraska are pretrial defendants who are not convicted and presumed innocent. The ACLU believes that money bail should not be imposed unless the court concludes both that (1) the arrestee can afford the bail amount and (2) that less restrictive, nonmonetary conditions would be ineffective on their own. The presumption should always be in favor of releasing people with the least restrictive conditions needed, and money bail must be considered the most restrictive condition short of detention. An individual may only be held, with or without bail, if the court, after an individual assessment, has concluded by clear and convincing evidence that the defendant poses an imminent threat to public safety that no other condition or combination of conditions can reasonably protect against.

Being free on bail affects the ultimate outcome of the case. Several scholarly studies have found that comparable low-risk defendants who are detained for the entire pretrial period are up to five times more likely to receive a lengthier sentence than similar defendants who posted bail. Those held pretrial are also statistically more likely to be rearrested even if held only for a few days—our money bail system is actually promoting future criminal behavior.

Detention has devastating consequences beyond the disposition of the case. The psychological impact of being held in jail for even a few days can be severe. The World Health Organization has found that jail suicides often happen within the first few hours of incarceration due to the sudden isolation, the shock of imprisonment, and the individual’s uncertainty about their future. Nebraska is not immune from these tragedies—one database of recent jail deaths includes several entries for our state, most of which occurred while the defendant was in jail for four days or less.

Even those found innocent—or whose charges are dismissed—are punished by our current bail system. The bail money is returned to these people, but the court system still retains ten percent for court costs. In other words, a defendant whose family managed to put together a $50,000 bail will welcome him home when he is vindicated by a jury, but they will still lose $5,000 as a court cost.

Findings

To construct a snapshot of the pretrial jail population in Nebraska, on four random days in the summer of 2016 we acquired the jail lists of the four most populous counties: Douglas, Lancaster, Hall, and Sarpy. As more fully described in the Appendix, this meant we were able to capture individual inmates’ criminal charge, race, amount of time in jail, and bond amount.

When an inmate had more than one charge, we recorded and categorized that inmate by the most serious charge for which they were awaiting trial. If defendants were being held pretrial for more than one charge, we calculated the total amount of money they would need to post to be released that day.

When categorizing the severity of the charges, we divided crimes into the nine categories in the Appendix. See the Appendix for a full explanation of methodology.

Through court observations, and reviewing bail schedules and jail lists, we discovered many current practices in Nebraska do no comply with the law.

Text: more than half of pretrial detainees are held for nonviolent crimes.

Many defendants are incarcerated for nonviolent crimes. An average of 17.5% of the pretrial defendants in the surveyed counties were in jail for nonviolent drug offenses. 11.4% were theft and shoplifting charges, and 7.3% were traffic related charges. In total, over half of the pretrial population were accused of nonviolent offenses. Notably, Hall County’s nonviolent pretrial population was the largest at 66.7%.

We found that all pretrial defendants spend an average of fifty-five days in jail before their trial or the acceptance of a plea deal. The waiting period is shockingly long even for nonviolent offenders, who spend an average of forty-eight days in jail. The amount spent to house each inmate varies by county. In Douglas County, it is estimated to cost $83.40 per day per inmate and Corrections is 19% of their 2017 budget. Hall County taxpayers pay approximately $88.00 per detainee per day and Corrections is 25% of their 2017 budget. The extent to which our county jails are overcrowded with low-level arrestees—who are presumed innocent—is demonstrated by the fact that both Sarpy and Douglas Counties are paying other counties to house their overflow inmates.

"First and foremost, we must ensure that we are in compliance with federal law when it comes to imposing fines and court costs on defendants. We should not be infringing upon people’s civil rights and incarcerating nonviolent offenders simply because they are poor and cannot afford to pay. We are in support of the ACLU’s efforts of reform."
Mary Ann Borgeson, Chair of the Douglas County Board of Commissioners

Image text: $73 million: combined cost of jails in Nebraska's four largest counties.

We also reviewed bail schedules, which are generally used for the initial period following an arrest; a defendant picked up after hours, on a weekend or on a holiday can still be released without seeing a judge if she has the cash listed on the bail schedule for her crime. These schedules are set by each of the 12 judicial districts, and the bail amounts vary widely based on geographic location. See the Appendix for bail schedules from each judicial district.

Examples of discrepancies from county to county include:

DUI in the First Judicial District (Gage, Saline, Nemaha counties) will bail out at $3,500, while a DUI in the Third Judicial District (Lancaster County) needs only $2,500.
Class I misdemeanors have bail at $10,000 in the Fifth Judicial District (Saunders, Seward, Platte, Hamilton counties) in comparison to $5,000 in the Fourth Judicial District (Douglas County).
Driving on a suspended license requires $2,500 in the Third Judicial District (Lancaster County) but no bail need be posted in the Fifth Judicial District (Saunders, Seward, Platte, Hamilton counties) for the same charge.
Domestic violence charges—even misdemeanors—automatically jump to $50,000 in the Second Judicial District (Douglas County) while other counties track the seriousness of the charge.
Bail amounts automatically increase for non-residents in the First Judicial District (Gage, Saline, Nemaha counties) and Tenth Judicial District (Kearney, Adams counties).
Officers have the discretion to release anyone without bail in the Second Judicial District (Sarpy County) except in cases of domestic violence and violations of protection orders. Residents may be released without bail in all cases if the arresting officer feels it is not necessary in the Tenth Judicial District (Kearney and Adams counties) and the Eleventh District (Dawson, Lincoln, Red Willow counties).
Only a few bail schedules emphasize the expectation that requiring a bail is limited to circumstances involving public safety or flight risk: Seventh Judicial District (Madison County), Eighth Judicial District (Howard and Brown counties), Twelfth Judicial District (Scotts Bluff, Box Butte, Cheyenne counties).

In addition, we found that people of color were disproportionately represented in the pretrial populations in comparison to the demographics of the county in which they were incarcerated.

In Lancaster County, whites compose 87% of the population, Blacks compose 4% and Hispanics compose 6%. In the Lancaster pretrial jail population, 59.1% are whites, 21.8% are Blacks and 8.2% are Hispanics.

In Hall County, the population is made up of 92% whites, 2% Blacks and 26% Hispanics. In the Hall pretrial jail population, 47.6% are whites, 20.6% are Blacks, and 25.4% are Hispanics.

In Douglas County, whites compose 81.1% of the population, 11.5% Blacks and 12.2% Hispanics. In the Douglas pretrial jail population, 39% are whites, 47% are Blacks and 10.7% are Hispanics.

In Sarpy County, the population is composed of 89% whites, 4% Black and 8% Hispanic. In the Sarpy pretrial jail population, 67.4% are whites, 16.3% are Blacks and 12.8% are Hispanics.

bar graph of racial disparities in pretrial population

The racial disparities we discovered extend to the amount of bail as well. The average bond for a nonviolent offense was $40,251 on the days we studied and $73,772 for a violent offense. If you are Black, Hispanic or Native American, you can expect your bond to be $14,572 more than the average bond for a nonviolent offense and $13,109 more for a violent offense. This disproportionate treatment of people of color in the pretrial context shows how the court system systematically disadvantages people of color. Nebraska’s racial disparities are not an anomaly; studies across the U.S. have demonstrated that money bail specifically has a disproportionate impact on communities of color.

Interviews with criminal defense attorneys across the state suggest that the findings from the four surveyed counties are likely a fair representation of Nebraska’s pretrial system as a whole. Attorneys identified the final essential problem of high bail amounts: they can result in defendants pleading guilty simply to go home. “My clients regularly do the cost-benefit analysis,” reported one public defender. “They can’t post bail, and the trial date is a month away. The defendant knows if they plead guilty today to a misdemeanor, it’s ‘just’ a little charge on their record and they can go home. What they don’t factor in is what happens on the next charge they might have. The next judge sees this person has a criminal record and accordingly decides to nudge the bail amount up a little more, creating a vicious cycle. I’ve had clients with a viable defense who just threw in the towel so they could get back to their job, their children, and their lives.”

We were also struck in our court observations by how unrepresented defendants are treated while appearing before the judge and prosecutor. Without an attorney to advance arguments for a low bail, these defendants frequently did not even know how to articulate the request for release on their own recognizance or on a reasonable bail amount.

Increased incarceration leads to an increase in spending taxpayer dollars on people who are presumed innocent in the eyes of the state, many of whom are not a risk to society but are too poor to post bail. Our current bail practices hurt Nebraskans who are presumed innocent, have devastating impacts on their families, and are fiscally burdensome for counties. This is why the ACLU, along with professional associations and county officials around the country, are calling for immediate reform.

chart showing number of paychecks it takes the average pretrial detainee to bail out

Examples of Reform

Pretrial defendants should not be incarcerated merely because they are poor and cannot gather enough money for bail. Not only is it unfair to the defendant, but it costs taxpayer money to have inmates sitting needlessly in jail. Many legal professional and criminal justice organizations have issued a call for the abolition of wealth-based bail similar to those used in Nebraska, including the American Bar Association, the National Association of Pretrial Services Agencies, the American Jail Association, the International Association of Chiefs of Police, the American Probation and Parole Association, the Conference of Chief Justices, and the National Association of Counties.

There are reforms that court systems can adopt to effectively decrease the pretrial jail population and the number of indigent defendants incarcerated because they cannot post bail. Research shows that money is not an incentive for people to appear in court, and a growing number of systems have begun to adapt practices that allow the release of people who otherwise could not make even a small monetary bail.

Washington DC has a progressive pretrial release system that was implemented twenty years ago that allows 90% of their pretrial defendants to be released without paying money. It constructed a system that includes a twenty-four hour service where pretrial officers meet with the defendants and public defenders and conduct an individual interview to determine the chance of them committing a crime on release or failing to appear in court. This recommendation is given to the judge in court the next day, who usually follows it, in a process that takes less than five minutes.

Kentucky’s justice system has a 70% pretrial release rate. Only 4% of those arrested receive money bail. They use one statewide agency that assesses the risks of all defendants arrested so recommendations are consistent, yet individualized, and a majority of those arrested are released without paying bail.

Similarly, the federal system requires that “the judicial officer may not impose a financial condition that results in the pretrial detention of the person.” This law requires a more individualized assessment of factors that include employment, previous criminal record, the defendant’s character and the amount of evidence in the case. These factors are used to determine the public safety risk and the chance the defendant would return to court. The score results in one of three outcomes: no bail, bail, or release on conditions.

Reforming Nebraska’s Bail System

We propose the following reforms to aid Nebraska’s court systems in reconstructing their pretrial release processes so defendants are not incarcerated simply because they lack the financial resources to post bail.

Blue-ribbon commission of experts

Establish a blue-ribbon commission of judges, attorneys, legislators, probation officers, law enforcement and civil rights advocates to evaluate best practices in modern bail systems. The topics for the Commission’s study should include: the best risk assessment tool that takes into account local factors; the options of pretrial supervision and monitoring via technology such as GPS monitors or check-ins with pretrial case managers; the current practice of bail schedules; increasing public defender funding to ensure presence of defense counsel at initial appearance.

Localized actuarial risk assessment

The judicial branch should develop an actuarial risk assessment for defendants in custody awaiting their initial appearance in court that calculates one’s public safety risk while taking multiple factors into account which follow the best practices that have been tested in other jurisdictions. When such risk assessments are carefully created with local validation, with scrutiny to ensure no racial bias, with transparent data collection and scoring and which does not substitute for an individualized determination of release, they can ensure an expanded pretrial release program.

Citation in lieu of arrest

Police should use citation releases in lieu of arrest whenever possible, using best practice in-field tools to determine if a defendant needs to be taken into custody.

Appointment of counsel

Judges should ensure the appointment of counsel at hearings before imposition of bail.

Reminder systems

Clerks of the Court should adopt reminder systems by postcard, phone call, and/or text message to reduce the number of failures to appear.

Data collection

The judicial branch should collect and publish performance measures. Data showing the effectiveness of pretrial detention vs release will aid future policymakers.

Modern Day Debtors' Prisons

Fines and fees collection practices are another set of justice system procedures that punishes defendants for being poor. Defendants who are charged with a misdemeanor or infraction are usually sentenced to pay a fine within the statutory limits, plus at least $49 in court costs. The dollar amount defendants are ordered to pay can vary significantly. Judges are not required to impose these fines and costs—state law only provides that they “may” impose fines and fees as part of the sentence. Unfortunately, our survey suggests that few judges are exercising their discretion to waive or reduce fines and fees based on individualized assessments. As a result, it has become the norm to impose both fines and costs in nearly every case, and many people leave court with financial burdens that they cannot pay.

“…it shall be the duty of [the court] to discharge such a person from further imprisonment for such fine or cost…”

Neb. Rev. Stat. 29-2412

The defendant is typically given a month or two to make payment to the court. If the person realizes in advance that they cannot pay their fines and fees by the deadline, they can appear in court and ask for more time. Interviews with criminal defense attorneys across the state indicate that many judges will extend the deadline for payment and may do so several times in an effort to work with the individual who faces difficulty paying fines and fees. However, if the judge loses patience after several extensions or if the defendant ultimately is unable to secure the resources and make payment, a warrant is issued, and they are arrested. People who are unable to pay are arrested without another hearing in front of a judge. These people are simply left to sit in jail at the statutory rate of $90 credit per day served.

This practice of making people come to court to ask for an extension of time for payments presents additional obstacles for the poor and leads to the jailing of people for reasons that do not advance public safety. In practice, some people have difficulty getting transportation back to court or cannot easily get time away from work or child care obligations to come back to request an extension of their time to pay. Some people forget their deadline for paying. Some are not aware it is a possibility to show up to court to ask for more time.

Once a warrant is issued, there are significant negative consequences for the poor. Research has shown that people with an outstanding warrant will avoid visiting a hospital, attending school, or maintaining a job for fear of being picked up by police. If a defendant is arrested unexpectedly, the defendant has no opportunity to make arrangements for their children’s care and may result in the taxpayer incurring the additional burden of caring for children whose parent is behind bars. The arrest may cause the defendant to lose her job or miss paying a bill—eviction, joblessness, and further financial instability are the result. The experience of being in jail—even for just a few days—can have significant and far-reaching effects on the defendant’s physical and mental wellbeing that destabilize the individual and their entire family. These negative consequences have a disparate impact on people of color due to the racial wealth gap.

A modern-day debtors’ prison should not exist at all in Nebraska in light of our clear state law protections, long-standing United States Supreme Court case law, and recent federal guidance. Neb. Rev. Stat. 29-2412 provides that if a defendant is unable to pay a fine because of their financial circumstances, “…it shall be the duty of such court or judge, on his or her own motion or upon the motion of the person so confined, to discharge such a person from further imprisonment for such fine or cost, which discharge shall operate as a complete release of such fine or cost.” The court’s burden to determine whether a defendant can pay is clear: the judge should inquire into an ability to pay prior to imposing any financial penalty and no defendant should be incarcerated for nonpayment of fines and fees owed without another hearing in front of a judge. In our months of court watching, we did not witness even one judge inquiring into a defendant’s ability to pay prior to imposition of fines and fees.