Justice Dept. warns judges against unconstitutional fines, touts pardons

The Justice Department sent a memo to the nation’s judges on Thursday that warned against imposing high fees and fines that would unfairly burden low-income people.

A day later, top officials at the agency celebrated several people who have received pardons and clemencies in recent years, characterizing their long sentences for nonviolent drug crimes as harsh and unfair.

Both efforts were part of the Biden administration’s campaign to address what Justice Department officials describe as systemic failings in the justice system that disproportionately affect the poor and people of color.

“Imposing and enforcing fines and fees on individuals who cannot afford to pay them has been shown to cause profound harm,” officials wrote in the “Letter to Colleagues” memo this week, which warned that harsh financial penalties that trap people in poverty could be unconstitutional.

“Individuals confront escalating debt; face repeated, unnecessary incarceration for nonpayment of fines and fees; experience extended periods of probation and parole; are subjected to changes in immigration status; and lose their employment, driver’s license, voting rights, or home,” the memo said.

Associate Attorney Vanita Gupta, the No. 3 person in the Justice Department whose office sent the letter, said that municipalities are wrongly issuing excessive fines and fees to people without assessing their abilities to pay them, relying on the money collected to fund basic functions of government. The fees often snowball and have resulted in people serving jail time for unpaid traffic tickets or housing code violations.

The letter is intended to serve as guidance for local and state judges and those working in juvenile facilities. It represents the Justice Department’s latest reversal of Trump-era guidance under Attorney General Merrick Garland, who also reversed a charging policy that called for prosecutors to pursue the most serious offenses possible, even when that might trigger stiff mandatory minimum sentences.

In 2016, under President Barack Obama, the Justice Department issued guidance similar to the memo on fines and fees sent out this week. That followed an investigation in to the police department in Ferguson, Mo., which determined that the city relies heavily on residents paying fines and fees to keep the city running. Each year, the report said, Ferguson – which came under national scrutiny in 2014 when 18-year-old Michael Brown was fatally shot by police – expects to collect more fines and fees, pressuring courts and the police department to impose them.

During the Trump administration, Attorney General Jeff Sessions rescinded the Obama administration’s guidance, along with at least two dozen other memos issued by previous administrations. Sessions said at the time that he was ending “the long-standing abuse of issuing rules by simply publishing a letter or posting a web page.”

Sessions – who sought to reshape the Justice Department to take a tougher stance on crime – also shut down the department’s Office for Access to Justice, which was created in 2010 under Attorney General Eric Holder during the Obama administration, to provide resources to help low-income residents navigate the legal systems.

Garland has reopened the office. Its staff helped to write the memo sent on Thursday and will issue a “best practices guide” to help local and state governments reshape how and when they impose fines and fees.

“This is the lowest hanging fruit in the criminal justice system,” said Marc Levin, chief policy counsel for Council on Criminal Justice. “Because this is the people who are going to jail not for a new criminal offense, but because they haven’t paid a fee.”

Advocates say that Republican and Democratic states have made progress in getting rid of some burdensome fees – even without the guidance – but added that more work is needed. Most states impose fees to cover court operation costs that are added on top of the fines for committing the violation, according to a report from Fines & Fees Justice Center.

Since the 2016 memo, the Justice Department said that 24 states and D.C. have ended or amended policies that suspend driver’s licenses for unpaid fines and fees.

The effort to reduce court fees and fines is a rare criminal justice effort that has bipartisan support, according to Frank Russo, associate general counsel of the American Conservative Union, a group that says it pushes to find solutions that balance public safety with reforming the justice system.

Russo said the Trump administration also made headway in recidivism efforts, including by significantly expanding the number of colleges and universities participating in the Second Chance Pell Pilot Program, an Obama-era initiative to help prisoners earn an associate’s or bachelor’s degree while incarcerated.

“This is actually an important way of reducing recidivism and building second chances,” Russo said of the Justice Department memo issued Thursday. “How can you expect someone to obtain new job opportunities and find housing and develop a success away from crime if you are saddling them with fees?”

More than a dozen people who were either pardoned or had their sentences shortened attended a “Celebration of Second Chances” event at Justice Department headquarters Friday morning with their families.

The event featured three people who had received clemency speaking with the lawyers and judges who pushed to get them released. The people had been incarcerated for committing nonviolent drug crimes.

Presidents have the power to formally forgive people for their crimes – which is known as a pardon – or reduce someone’s criminal punishment, which is known as a commutation. Obama commuted 1,715 sentences, most toward the end of his presidency. Trump commuted the sentences of 70 people. So far, Biden has commutations for more than 80 people, a number that advocates say is far too low.

Kenneth A. Polite Jr., head of the Justice Department’s criminal division, sat on the stage with Danielle Metz, a New Orleans woman who was sentenced to three consecutive life sentences plus 20 years in 1993 for nonviolent drug offenses. When Polite served as the U.S. attorney for the Eastern District of Louisiana, he pushed for clemency for Metz, writing a letter to Obama saying that she deserved to return to her community.

Metz on Friday described spending more than two decades incarcerated, trying to do everything right to ensure she had a chance of one day being released. She was granted clemency in 2016 and has since attended college. Metz now works as a community health worker and advocate and said clemency has enabled her to “shine” outside her jail cell.

“She is the living embodiment of justice achieved,” Polite said Friday.

Alexander Williams, a former federal judge in Maryland, described how sentencing guidelines gave him no choice but to send Evans Ray Jr. to prison for life in 2007 for distributing crack cocaine. Williams later pushed for Ray to be granted clemency, which he was awarded in 2016.

Ray and Williams now advocate together against mandatory minimum sentences.