In a nine-page letter sent to all state chief justices and state court administrators on Monday, the DOJ’s Vanita Gupta, who heads the Civil Rights Division, and Lisa Foster, the director of the Office of Access to Justice, urged local officials to “review court rules and procedures within your jurisdiction to ensure that they comply with due process, equal protection, and sound public policy.”
Judges who incarcerate poor people because they missed a payment are breaking the law, the letter said. What many courts consider a “routine administrative matter” of forcing defendants to pre-pay a “bond” or “bail” before they’re allowed to schedule a court date is actually unconstitutional, Gupta and Foster wrote.Locking people in cages for long periods of time solely because they can’t affordto buy their freedom is a violation of the country’s supreme law, the U.S. Constitution.
Civil rights advocates praised the Justice Department for sending the letter. However, they say there’s a much more powerful tool available if the feds really want to deter judicial crime: Federal prosecutors can hold judges accountable for their unlawful conduct by charging them with a federal crime.
Section 242 of Title 18 of the U.S. code — the so-called “color of law” statute — is the same federal civil rights legislation that Justice Department prosecutors use against police officers and prison guards who use excessive force and make false arrests. The law applies to prosecutors and judges, too. But the feds don’t use it against them often.
Hub Harrington, a former circuit judge in Shelby County, Alabama, who in 2012called Harpersville Municipal Court a “debtors prison” and a “judicially sanctioned extortion racket,” suggested prosecuting judges who break the law at a December meeting at the White House. He said he approached the Justice Department and the Alabama Attorney General about the issues in Harpersville and was frustrated that former Municipal Court Judge Larry Ward wasn’t charged over his conduct.
“We’ve been talking about the victims,” Harrington said at the time. “What about the perpetrators? We got the laws in place. We already have the law you can’t put indigent people in jail without a hearing. We don’t need more laws. We need to enforce the ones we’ve got.”
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