The American jail system is an abomination writes Ryan Cooper in The Week. Over three-fifths of people who are in jail (as opposed
to prison) have not been convicted of a crime. And of those, a large fraction
are there because they cannot afford bail. That is a gross violation of the
Fifth Amendment, which states that no person can "be deprived of life,
liberty, or property, without due process of law."
But mass incarceration of people simply because they
are poor is also the natural outgrowth of a jail system that is
chronically underfunded, locally administered, and concerned more with
warehousing troublemakers than with constitutional due process.
However, things have started to change — most
recently by something called a model
bench card for justices. It says that nobody can be jailed for
nonpayment of fines without a hearing establishing that they had the money and
deliberately refused to pay, or that nonpayment was not the defendant's fault
and alternatives to incarceration were inadequate.
So what is a bench card? Essentially, it's a
quasi-official set of rules outlining court procedure and constraining how
judges are supposed to rule — basically a cheat sheet for following the law.
This bench card is the result of consistent pressure from outside legal
efforts, most notably the ACLU, which has been suing debtor's prisons for years and years. Their
push resulted in the National Task Force of Fees, Fines, and Bail Practices,
which involved the Conference of Chief Justices (a powerful force composed of
the highest judicial officer from each state and territory), the Conference of
State Court Administrators, the ACLU, and several other organizations.
The model card provides simple and clear rules about
notifying defendants about their rights (including the right not to be jailed
for being poor), how they must be allowed to explain their financial situation,
a definition of poverty, and so on. It includes a set of procedures ensuring
this happens, as well as a list of options for people unable to pay, which
importantly includes one reading "Waiver or suspension of the amount
due," and two other similar options. Many of the worst abuses of the poor
in the criminal justice system come from treating
them as a profit center, and that is a big step away from that mentality.
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