By Dan Christensen, FloridaBulldog.org
A letter from the U.S. Justice Department urging state judges across the country to eliminate “common” court practices that illegally trap poor defendants in cycles of debt and jail is reverberating in Broward with accusations that courts here favor the well-off.
Broward Public Defender Howard Finkelstein once again is leading the charge for systemic reform as evidenced by a series of testy recent written exchanges with Broward Chief Judge Peter Weinstein. Among other things, Finkelstein wants the courts to scrap the use of so-called “convenience bail bonds” the poor often cannot afford, and accuses judges of fostering a “double standard” of justice by ignoring the disparate treatment of minorities and the indigent.
“This jurisdiction’s practices have effectively institutionalized racism by disproportionately incarcerating poor minorities for decades,” Finkelstein concluded Sept. 2 in his most recent letter to Weinstein.
In an interview on Friday, Weinstein replied, “I don’t know where he gets that from. Every judge ascribes to the saying that justice is blind and ignores race, creed, national origin and gender in ruling. Howard can absolutely write what he wants, but that doesn’t necessarily make it so.”
The Department of Justice’s March 14 letter, signed by Deputy Assistant Attorney General Vanita Gupta, followed a gathering of judges, court administrators, lawmakers, prosecutors, defense attorneys and others last December to discuss fines and fees imposed by state and local courts. The letter said the convocation, held in the wake of the department’s investigation of racially troubled Ferguson, Missouri, “made plain that unlawful and harmful practices exist in certain jurisdictions throughout the country.”
U.S. Attorney General Loretta Lynch described those illegal practices as “the criminalization of poverty.”
The letter explained it was issued to help the courts ensure that they operate fairly, noting the illegal enforcement of court fines and fees can have “profound” effects on low-income persons accused of “misdemeanors, quasi-criminal ordinance violations or civil infractions.”
“Individuals may confront escalating debt; face repeated, unnecessary incarceration for nonpayment despite posing no danger to the community;
lose their jobs; and become trapped in cycles of poverty that can be nearly impossible to escape,” the nine-page letter said. “To the extent that these practices are geared not toward addressing public safety, but rather toward raising revenue, they can cast doubt on the impartiality of the tribunal and erode trust between local government and their constituents.”
A caution from Justice
Among other things, the letter cautioned that courts “must not employ bail or bond practices that cause indigent defendants to remain incarcerated solely because they cannot afford to pay for their release.”
Finkelstein, a state constitutional officer, filed a public records request with the Broward court to obtain a copy of the Justice Department’s letter. Weinstein later explained that he “did not provide the letter to any stakeholder as it was addressed to the courts to assist with review of local practices and procedures.”
Weinstein said Friday he’s waiting on Florida’s Office of the State Court Administrator. “They’re reviewing it and will come back and advise us,” he said. “But I really don’t believe we are doing some of the things we are accused of. We don’t put people in jail because they can’t pay a fine.”
According to Finkelstein’s Sept. 2 letter, however, “Individuals are often held in jail following a magistrate hearing for a minor offense simply because they cannot afford to post the bond.”
Beyond the fundamental question of fairness is the impact that bond requirements have on Broward’s chronically overpopulated jail system, which has been under a federal consent decree and monitoring for decades.
In July, the Sun-Sentinel reported the findings of court-appointed jail population expert Dr. James Austin, who said Broward’s jails typically house 4,500 to 4,600 people, with 5,144 beds, but when the population exceeds 85 percent of capacity – or about 4,400 inmates – the system becomes strained.
According to the paper, Austin’s report went on to say that at the time of his analysis in 2015 about 300 inmates were being held on bonds of $100 or less.
The Eighth Amendment to the U.S. Constitution says “excessive bail shall not be required, nor excessive fines imposed.” Federal courts have interpreted that to mean that a defendant’s bail cannot be set higher than an amount that’s likely necessary to ensure his presence at trial.
Defendants charged with first-degree misdemeanors like petty theft or possession of a small amount of marijuana must post a $100 bond to get out. Those charged with a misdemeanor of the second degree, such as disorderly intoxication or loitering will need $25.
But even those small amounts can be difficult to scrape up for the homeless or the otherwise down and out.
‘Follow other jurisdictions’
In his summer correspondence, Finkelstein urged Weinstein to “follow other jurisdictions and begin implementing the release of misdemeanants without monetary bond.” He cited Calhoun, Ga., which in January “implemented recognizance release procedures” following a federal judge’s order.
The chief judge responded to Finkelstein that Broward judges do consider non-monetary releases “and divert as many individuals as possible to the Broward County Sheriff’s Pre-Trial Release Program.” The program includes screening, assessment and, for those who get out, monitoring.
Yet current bond practices that allow moneyed defendants to post a bond and walk free until trial “disproportionally affects minorities and the indigent,” according to Finkelstein.
“Diverting individuals to the pre-trial release program creates a double-standard wherein those with money are not required to be supervised by the Sheriff’s Office, while those without money require supervision,” Finkelstein wrote in his Sept. 2 letter.
In Friday’s interview, Weinstein said he is opposed to releasing all misdemeanor defendants on their own recognizance, noting that a “staggering” number of warrants are issued every year for defendants who fail to show up for trial.
“Whether to release is within the discretion of the judge,” Weinstein said. He cited domestic violence as a crime that is inappropriate for such treatment.
“Domestic violence may be a misdemeanor, but the amount of psychological abuse and previous physical abuse that a spouse may have suffered may place them at risk of serious emotional harm an even death,” Weinstein said.
In 2015, following complaints from State Attorney Mike Satz’s office, the court revised its bond schedule to require misdemeanor defendants charged with violent offenses such as battery, arson and domestic violence to appear before a First Appearance court judge before being eligible to post bond.
Finkelstein, however, argues that Broward’s bond schedule should be abandoned and that all defendants should be brought before a First Appearance court judge “to allow for individualized release conditions.”
“Individual determinations, however, require a 24-hour magistrate. This circuit has decided not to place such a ‘hardship’ on the judiciary, but instead place the true hardship on the indigent,” Finkelstein wrote.