Update (2/19/2015): Check out this great editorial from the Bangor Daily News on Maine's debtors' prisons. From the editorial:
"...the state needs to re-examine why so many people are in jail to start with and what we hope to accomplish by keeping them there. We’ll likely find that many of them don’t need to be behind bars."
On Friday, the Department of Justice filed a statement of interest in Varden v. City of Clanton, a case challenging Alabama’s pre-fixed bail system, in which the plaintiff is alleging her constitutional rights were violated when she was forced to remain incarcerated when she was unable to pay the fixed cash bond amount.
In the statement, signed by Acting Assistant Attorney General of the Civil Rights Division (and former director of the ACLU Center for Justice) Vanita Gupta, the DOJ wrote:
“Incarcerating individuals solely because of their inability to pay for their release, whether through the payment of fines, fees, or a cash bail bond, violates the Equal Protection Clause of the Fourteenth Amendment … It is the position of the United States that, as courts have long recognized, any bail or bond scheme that mandates payment of pre-fixed amounts for different offenses in order to gain pre-trial release, without any regard for indigence, not only violates the Fourteenth Amendment’s Equal Protection Clause, but also constitutes bad public policy.”
U.S courts have continually affirmed that a two-tiered justice system (such as one that treats those with access to monetary resources better than those without) violates the promise of equal protection and thus is not constitutionally permissible. And yet, all across the United States, schemes that punish people just for being poor are commonplace.
Here in Maine, just take one look into our jail system - where the average daily population has increased by 79 percent since 2009, leading to overcrowding in some Maine jails and ballooning budgets. This is due in large part to an increase in the number of people being held pending trial – pre-trial detainees now make up two-thirds of Maine's jail population.
As with Alabama’s bail system, in Maine, decisions about pre-trial release often do not take into account a person’s ability to pay. A 2011 report by the Maine Center for Public Reporting revealed that decisions about cash bail amounts, made initially by bail commissioners, are unofficially pre-set in some counties and in others are based on the amount of the fine a person will have to pay if convicted. As a result, every day hundreds of Mainers who have not been convicted of any crime languish in our jails - not because they are a flight risk or a threat to community safety, but because they are too poor to pay.
As Portland defense attorney and ACLU board member Molly Butler Bailey recently wrote in the Portland Press Herald:
“These are people who have not been convicted of a crime, yet they sit in jail for months as added hardships pile up – lost jobs, lost housing, lost services and strains on family members. If they had more money, they would be able to go about their regular lives while awaiting trial.”
And cash bail is not the only way our system penalizes people for their poverty. In the last year alone, thousands of people were locked up in Maine jails for failure to pay a fine - amounting to modern-day debtors' prison.
Sound like we have just time-traveled back two centuries and into a Charles Dickens novel?
While the United States outlawed debtors' prisons over a century ago, every day Mainers are arrested and booked into our jails for overdue fines as low as $25. If you owe a criminal fine in Maine and it is more than 30 days delinquent, your license is immediately suspended (and cannot be reinstated without paying a fee), exorbitant late fees are tacked on to your fines, and a warrant is generated for your arrest.
Again, the U.S courts have repeatedly affirmed that no person should go to jail just because he or she is too poor to pay. Yet systems like this persist. In Maine, the reemergence of debtors' prisons can partially traced to lawmakers' efforts to balance stretched state budgets. But the kicker is, at $130 a day to incarcerate someone, it’s likely costing the state money - not making us any. Not to mention the disruption to the lives of those individuals who, due to their incarceration, may have lost their homes and employment and thus any ability they may have had to pay the fine in the first place.
In schemes like cash bail and incarceration for unpaid fines, access to justice is predicated on access to wealth. This is not only deeply unfair and unconstitutional, but - given that we are esssentially using our jails to punish the poor for being poor - an incredible misuse of our justice system.
Thanfully, people are taking notice and two bills have been submitted this session to address these issues. The first will prohibit incarceration for failure to pay fines and restore judicial discretion to waive certain fines, and the second will eliminate our cash bail system and replace it with a risk-based system. Sign up for our action alert system to keep up to date on the status of these bills and to find out ways in which you can get involved.
