By the way, “when doing the ethical thing is ugly but necessary” both refers to Sessions’ action and my writing this post…
In March 2016 , President Obama’s Justice Department sent another one of the administrations patented (well, not really) “Dear Colleague letters” like the one that was used to bully colleges and universities into punishing male students for alleged sexual assault in the absence of sufficient evidence. This one was sent to state and local courts, urging them <cough>to review their procedures regarding fines and other punishments issued to the indigent to ensure that they were consistent with “due process, equal protection and sound public policy.” The Justice Department’s 2016 release linked the letter to its description of a $2.5 million grant program to help agencies develop strategies that reduce unnecessary confinement of those who can’t pay fines and fees.” The letter said in part,
“Typically, courts do not sentence defendants to incarceration in these cases; monetary fines are the norm. Yet the harm caused by unlawful practices in these jurisdictions can be profound. Individuals may confront escalating debt; face repeated, unnecessary incarceration for nonpayment despite posing no danger to the community; lose their jobs; and become trapped in cycles of poverty that can be nearly impossible to escape.”
The letter also outlined “basic constitutional principles” regarding fee and fine enforcement. They included:
1) Courts shouldn’t incarcerate a person for nonpayment without first determining whether the person is indigent and whether the failure to pay is willful.
2) Courts must consider alternatives to incarceration for indigent defendants unable to pay. Alternatives could include requiring community service or classes, reducing the debt or extending the time for payment.
3) Courts must not condition access to a judicial hearing on the prepayment of fees and fines.
4) Courts shouldn’t use bail or bond practices that keep indigent defendants incarcerated because they can’t afford to pay for their release.
I agree with most of the policies the original letter urges, but that is irrelevant. It is likely most of the courts that received the letter did as well, and that’s also irrelevant. It is not the job, nor constitutionally appropriate, for the Federal government to dictate to state and local jurisdictions by heavy-handed “This is what we think is right, and we’re watching you” threats—which is exactly what these kinds of letters are. It’s an abuse of power. It’s an abuse of power no matter how good the intentions are.
Attorney General Sessions, in retracting the letter and other improper attempts at extra-legal regulations, wrote:
“Last month, I ended the longstanding abuse of issuing rules by simply publishing a letter or posting a web page. Congress has provided for a regulatory process in statute, and we are going to follow it. This is good government and prevents confusing the public with improper and wrong advice. Therefore, any guidance that is outdated, used to circumvent the regulatory process, or that improperly goes beyond what is provided for in statutes or regulation should not be given effect. That is why today, we are ending 25 examples of improper or unnecessary guidance documents identified by our Regulatory Reform Task Force led by our Associate Attorney General Rachel Brand. We will continue to look for other examples to rescind, and we will uphold the rule of law.”
Gutsy. Also correct, but oh how the news media and progressives are going to pillory Sessions and President Trump for this!
They already have started. The ABA Journal reported that,
ABA President Hilarie Bass released a statement on Friday expressing disappointment in the decision to rescind the fees and fines, and asks the Justice Department to reconsider.
“These monetary punishments do nothing to protect the community while placing an unfair and unjust burden on people of lesser means,” the statement said. “Fees and fines that do not take into account a defendant’s ability to pay lead to the criminalization of poverty.”
Fees assessed for minor infractions, such as traffic tickets, can “spiral into thousands of dollars” and lead to unnecessary jailing of those unable to pay, the statement also said.
“Bail set without consideration of financial circumstances can lead to detention of the poorest rather than those who are the most dangerous or those posing the highest flight risks as intended. … If we, as a country, are to live up to the ideal of equality under the law, then there cannot be a price on justice,” the statement noted.
Hilarious: the ABA’s publication just showed exactly why Sessions is right and the practice Sessions condemned is wrong. Did you catch it?