Judges try to rein in the use of defendants as cash cows

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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