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By Jason Searle, 1L and Editors of MJR&LFebruary 24, 2016
One of the keynote speakers at the Michigan Law symposium Innocent Until Proven Poor drew parallels between the water crisis in Flint, Michigan, and the situation in Ferguson, Missouri, after a young black man was shot and killed by a white police officer.
“In communities across America today, from Ferguson, Missouri, to Flint, Michigan, too many people—especially young people and people of color—live trapped by the weight of poverty and injustice,” said Vanita Gupta, assistant attorney general for the U.S. Department of Justice’s Civil Rights Division.
Gupta and other speakers addressed the criminalization of poverty and the increased likelihood that poor people will become homeless, indigent, and incarcerated. Gupta cited the treatment of poor people in courtrooms around the country, which she said is “frequently unconstitutional.” The inability of poor people to pay fines can set off a “downward spiral,” she said. “Our country needs, and deserves, a criminal justice system that more effectively protects our communities, more fairly treats our people and more prudently spends our resources.”
While the legal system historically has been stacked against the poor, especially poor minorities, she said bias does not have to be permanent. She also said that a window of opportunity currently exists for communities to take significant steps toward protecting disadvantaged people from the unfairness that has developed in the legal system. Gupta asserted that if we let this moment pass instead of reaching for transformative change, “we should be ashamed of ourselves.” (Read her full remarks.)
The symposium attracted more than 320 scholars, practitioners, community activists, and students from 14 states and Washington, D.C., to share their experiences and strategies for fighting the criminalization of poverty.
Following Gupta’s keynote address, Friday’s portion of the symposium included two panels and four breakout sessions. The first panel introduced ways in which the rights of the poor are violated by the criminal justice system presently. Jonathan Smith, who led the Department of Justice’s Special Litigation Section when it issued the Ferguson Report, explained, “Ferguson underscored a problem that is everywhere.” He recommended engaging communities in how they want to solve over-policing and safety concerns.
Former prosecutor, law professor, and police accountability expert Kami Chavis Simmons suggested that police officers wear body cameras to improve accountability. In her view, “we can keep the public safe without incarcerating more people.”
The panel also explored the collateral consequences of policing for some of the most vulnerable—homeless people and children in foster care. Former public defender Tristia Bauman discussed her efforts to track policies that criminalize the homeless with the National Law Center on Homelessness & Poverty. She noted a recent rise in policies that restrict basic human activities, such as sitting and sleeping. She explained that taxpayer money would be better spent on providing housing and emergency shelter for homeless people than on arresting, booking, and releasing them repeatedly, which compounds their criminal records and only makes it more difficult for them to obtain employment and housing.
Michigan Law Clinical Professor Vivek Sankaran, ’01, echoed Bauman’s sentiment that we should focus on providing better access to housing. He explained that children have been taken from poor families and put into the foster care system because poverty is considered a form of neglect. He emphasized that one-third of the children in the foster care system could be returned to their families if they had adequate housing.
The second panel focused more specifically on the detriments to the poor in the jail system, especially poor people of color. According to Michigan School of Social Work Professor Reuben Miller, the mere accusation of wrongdoing exposes people to enormous costs. He also introduced a paper he will publish in the Michigan Journal of Race & Law’s forthcoming symposium issue. He explained that the frequently cited figure of 2.2 million people in U.S. jails and prisons substantially undercounts the number of people truly affected by the American criminal legal system, pointing out that there are 5 million people when probation and parole numbers are included, 11 million when the number of people processed through county jails annually are added, and nearly 70 million when felony convictions and all residents with criminal records are included in the tally. The effect on communities across the United States, particularly communities of color, is staggering, said Miller.
American University law Professor Cynthia Jones offered ways to improve understanding and accountability. First, she explained that information should be gathered through a pretrial services agency to help judges make more informed decisions. Second, she suggested that judges should be required to state on the record their reasons for imposing bail to enable review of their decisions that would reveal and confront them with their biases.
The breakout sessions that followed covered a wide range of topics, from local strategies to combat the criminalization of poverty to the profit incentives in the system, such as pay-to-stay jail policies and for-profit probation institutions. “People have become really desensitized to these issues,” said Sara Zampierin in a breakout session she led.
Zampierin has driven for-profit probation institutions out of Alabama in her work with the Southern Poverty Law Center. She explained, “Our job as advocates is to get rid of illegal practices before they get entrenched.”
The symposium continued on Saturday, featuring keynote speaker Sarah Geraghty, ’99, managing attorney of the Impact Litigation Unit at the Southern Center for Human Rights. Geraghty told personal stories about her disadvantaged clients, all of whom had been subjected to deplorable treatment through the criminal system, she said, often for minor infractions.
Geraghty recounted an episode in which one of her clients, Ms. Cheeks, was charged with failing to come to a complete stop at a stop sign. Because she was unable to pay the $50 down payment for a $140 fine, Cheeks was jailed. Her fiancé was forced to sell her engagement ring and a number of their other possessions to raise enough money to secure her release.
“People without money are the only ones that go to jail,” Geraghty said. “We simply can’t tolerate the state of affairs as they exist.” She said collaboration is the best way to attack these issues.
In one of the Saturday workshops, presenters from Lucas County, Ohio, shared their experience working together to reduce incarceration and racial disparities in their community. County Commissioner Carol Contrada explained that they had “one of the most inefficient jails in the country.”
Holly Matthews of the Criminal Justice Coordinating Council discussed the County’s efforts to collect data to better understand their jail population. This revealed that the concentration of offenses and poverty were in the same sectors of the community, she said.
Based on this data, Contrada eliminated the $300 fee for a diversion program that provides poor offenders with equal access to the program, successful completion of which results in the dismissal of charges.
Another workshop on Saturday included a discussion of how public defenders can fight the criminalization of poverty, featuring Marilena David-Martin, manager of the Criminal Defense Resource Center in the Michigan State Appellate Defender Office, and Colin Reingold, ’08, litigation director at Orleans Public Defenders. Reingold and David-Martin pointed out that sometimes “our wins are losses,” referring to state legislatures undoing the work of successful litigation. Each offered ways in which their offices have overcome sometimes chronic underfunding to provide holistic services and attack systemic constitutional violations from the posture of a criminal proceeding, rather than a civil rights one.
ACLU of Ohio lawyers Mike Brickner and Jocelyn Rosnick shared their solution to debtors’ prisons after their office uncovered, over a six-month period, that 20 percent of the jail population in a random sample of counties in Ohio was incarcerated for fines and fees. Instead of litigating, the ACLU published a report called “In for a Penny” and fronted a vigorous campaign against municipal court fee and fine practices, revealing not only the unconstitutional debtors’ prisons that resulted but also their cost-ineffectiveness. The campaign was successful, resulting in a “three-step plan” formed with the help of the chief justice of the Ohio Supreme Court. Since implementation, the ACLU has received far fewer calls about excessive fines and fees, and judges around the state have reported changes in their jurisprudence, the speakers said.
Other workshops focused on topics such as finding constructive solutions to homelessness, building a national racial justice advocacy capacity, and more.
“It was an extremely effective program,” Smith said. “The program was uniformly high quality, solution-oriented, and practical. [The symposium] made a tremendous contribution at a critical moment.”
First-year law student Ira Stup agreed: “It has been absolutely fantastic—provocative, challenging, and incredibly well orchestrated.”
Reingold gave the closing remarks, discussing the challenges confronting public defenders in New Orleans: “We have more people in cages than anywhere else in the world per capita. We are essentially ground zero for the criminalization of poverty.”
New Orleans is facing “a constitutional crisis,” Reingold emphasized. He said that his office has been forced to turn away indigent defendants in need of representation because it is underfunded and its staff is overworked. “It is anathema to us as public defenders,” he explained.
Though most presenters and attendees participated precisely because they recognize the crisis occurring in the American criminal legal system, a spirit of collaboration and solidarity was ever-present—a feature alluded to at the end of Reingold’s remarks. “Keep doing what you’re doing,” he said. “Let’s hold that line.”
The symposium was hosted by the Michigan Journal of Race & Law, which will publish scholarship related to this event in its next edition. Copies can be preordered for $15 from MJRL-Business@umich.edu by March 11 and will be available in May. Video and resources from the symposium will be available online soon at www.innocentuntilprovenpoor.org.
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