There are many troubling revelations in the DOJ’s report on race and criminal justice in Ferguson, Missouri: explicit and implicit racial bias infecting police work, patterns of unconstitutional stops, searches and arrests, a judicial system with practices that make it difficult to defend oneself, harsh penalties for small offenses and late payments to the court, a focus on revenue generation from the top to the bottom of the municipal justice system, and an overall effect that disproportionately hurts African-Americans. None of these revelations are surprising to criminal defense lawyers anywhere, who regularly deal with these challenges in communities both similar to and different from Ferguson. Ferguson stands out due to the large effect of explicit and implicit racial bias by law enforcement, but in many ways, Ferguson is typical of many municipalities around the U.S., and in Colorado.
In particular, many municipal courts and law enforcement are unduly focused on revenue generation, as opposed to cost-effective policework focused on meaningful improvements in public safety. If you haven’t been accused in a system like this, you may not realize what a problem it is. “Let the criminals pay for the court system” many casual observers (and city councilpersons) say. This is wrong-headed for several reasons.
One flaw with that view is philosophical. The cost of living in a safe, civilized society with the rule of law is taxes that pay for courts and law enforcement. It is a shared expense that benefits the public at large. People convicted of crimes should certainly contribute more to that expense by paying court costs and fines (which they surely do), but it is not feasible or desirable to put too large a proportion of that cost solely on those who are convicted of crimes. Putting too much of the cost on those convicted of crimes makes it difficult for them to achieve meaningful rehabilitation, and may actually increase crime. It is hard enough merely to get quality employment with a criminal record, but to bear the additional cost of funding the bulk of the justice system would saddle people with impossible debts. A full life, with something to lose, where honest work leads to basic financial security and a sense of self-worth, where the perceived costs of crime outweigh the benefits, is the goal. It is a hard goal to reach when court costs and fines compete with education and job training. Or where one has to choose between paying the court on time or being evicted, or being dragged repeatedly into court (and missing work, or job interviews) on minor infractions or to reschedule payment plans.
The practical realities of law enforcement amplify these issues—it is not accurate or fair, for most crimes, to say that a person charged with a crime must reap what he has sown. The fact is, law enforcement is in many ways arbitrary, and many people charged with offenses may not be reaping what they have sown any more than if they’d been struck by lightning. Our criminal statutes are worded broadly and depend on sound judgment in their application. We count on the police to not arrest more than they do, because so many technical violations of laws do not meet our gut sense of what a crime is. This is a separate topic for a separate post, but suffice it to say when officers are not reasonably and neutrally using discretion, arrests and charging decisions become arbitrary or worse. In some sense, there is a reverse lottery at work: large swaths of population commit certain types of violation (say, marijuana possession in a state where it is illegal), but only the unlucky few that get caught are saddled with criminal records that impair their ability to get financial aid for college, credit, housing, jobs, and more. For just one example, how many people who say “let the criminals pay” could have been one of those unlucky criminals, had they had a little less luck on their side the days they “experimented” with marijuana?
But even worse than arbitrary, this reverse lottery chooses its unfortunate winners with a fair amount of predictability, and it tends to choose racial minorities and poor people While there is certainly an amount of explicit and implicit racism that shape the results of this lottery, it can be hard to convince the doubters who have fairy-tale views of human nature, or who view any acknowledgment of racism as excuse-making. For racism deniers, then, try denying there is also an economic bias to this reverse lottery. Most police contact (and related firearm, drug and other “possession” type charges) outside of major pedestrian cities results from automobile traffic stops, and the poor and working classes are much more likely to be stopped, regardless of their color. Sometimes the stop leads to only traffic charges, but these types of stops are also one reason why poor people are also charged more often for things like drug possession: the white collar worker with cocaine in his flawless Lexus never gets stopped, but the blue collar worker with cocaine in his beat up pickup truck gets stopped all the time. The reason is that so many bases for stops are economic in nature: broken taillight, chipped windshield, expired license plate tags, etc. Wealthy people get their windshields and taillights fixed promptly. Wealthy people don’t have to choose between paying a heating bill and paying their vehicle registration. If a wealthy person loses his driver’s license, he reinstates it as promptly as possible and pays for taxis to get to and from work in the interim. If a poor person loses his license, say due to a lapse in child support payments, he may not have the funds to reinstate his license for a long time, and may feel the need to cheat and drive to work in the interim. If he also has a chipped windshield and gets stopped, he’ll be charged for the obstructed view as well as driving under restraint, leading to a longer license suspension extensive fines and costs, as well as hurdles in maintaining and getting to employment, and additional expenses to eventually reinstate the license. The DMV and the court become the walls of a debtor’s prison.
Given that poor people are overrepresented in the criminal justice system relative to the amount of crime they commit, it is especially odious to set revenue generation as a goal of the system. Unfortunately, it happens in numerous municipal courts around Colorado. In the last few years the Colorado legislature raised the maximum possible municipal fine to $2650. Anecdotally, fines in municipal courts tend to be consistently higher on municipal offenses than their state equivalents, often dramatically. Some municipalities, like Mountain View, seemingly exist only to ensnare passers-through with utterly minor traffic tickets unconnected to public safety, tickets that cost far more to challenge than to just pay off, however unjust. In Aurora, indigent defendants who can not be represented by the public defender due to a conflict of interest are appointed “conflict counsel” who will be paid $600 all the way through a jury trial. Needless to say, $600 does not pay for an elite defense, and it is fair to wonder if it pays for a basic defense, other than lawyers who generously take the cases as a form of near-pro bono work. But the low payment for indigent defense keeps the assembly-line moving at low cost to the city, with or without substantive justice.
It’s a rotten feeling to be charged with a crime or a traffic offense that affects your right to drive, your dignity, your freedom, and to know that underlying the charging decision, the manner of prosecution, and the court’s handling of your case, was the desire to simply extract money from you. Hopefully Ferguson’s report will open eyes around the country and lead to discussions on race. I also hope it will lead to gut checks and discussions about how many of our municipalities handle criminal prosecutions. There are better ways of raising money than with trumped-up charges and high fines for minor incidents, especially when we know that the poor and racial minorities handle the brunt of those charges, out of proportion to their commission of crimes.