Reducing the disability of poverty in our criminal justice system

Two recent cases mark a trend in which California courts recognize that wealth and poverty have increasingly resulted in two different justice systems, and demonstrate attempts to even the playing field.

On Jan. 25, 2018, the 1st District Court of Appeal handed down In re Humphrey, 19 Cal. App. 5th 1006, a landmark opinion in which the court held that trial courts are, first, constitutionally required to consider non-custodial alternatives to pretrial detention before setting bail for "public safety" reasons; and second, to consider an accused's ability to pay when setting bail. The court's rationale was that, in a system in which bail is meant to assure the presence of the accused at criminal proceedings, there is no rational nexus between public safety and the amount of bail.

The factual underpinning of the Humphrey decision was a prosecution in which the defendant remained in jail before trial solely for want of bail. This came after the trial court failed to consider non-custodial pretrial orders such as stay-away orders and drug treatment as a means of protecting public safety. The decision is currently under review by the California Supreme Court, but the court did not depublish it pending review.

Nearly a year later, on Jan. 8, 2019, the 2nd District Court of Appeal issued its own landmark opinion in People v. Dueñas, 2019 DJDAR 208. In this case, the court held that "using the criminal process to collect a fine [defendant] cannot pay is unconstitutional." The decision mandates ability-to-pay hearings before non-punitive fees intended to fund court operations are imposed, and requires that punitive fines be stayed until the government proves the defendant's ability to pay.

Dueñas arose from a trial court's refusal to reduce or stay "mandatory" fines and fees despite the defendant's inability to pay. The Dueñas majority rested its decision on due process, recognizing that statutes imposing such fines "are fundamentally unfair because they use the criminal law, which is centrally concerned with identifying and punishing only blameworthy decisions, to punish the blameless failure to pay by a person who cannot pay because of her poverty." The defendant in Dueñas was convicted of driving while her license was suspended for failure to pay fines she could not afford. Like Humphrey, Dueñas noted the disconnect between the law's stated purpose and its reality: "The laws [imposing fines and fees on the indigent] are irrational: they raise no money because people who cannot pay do not pay." We predict the California Supreme Court will grant review in Dueñas.

We believe that both of these cases represent a trend toward long-overdue judicial recognition of the fact that idealization of the criminal legal system as a means of dispensing justice for wrongdoing is at odds with its de facto use as a means of regulating the poor. This "legal dissonance" implicates broader social values such as equality before the law, substantive and procedural due process, equality of opportunity, and meaningful rehabilitation.

The reality that the criminal law is chiefly a means of regulating poverty has been an open secret for some time. Justice Oliver Wendell Holmes commented on it in 1881 in "The Common Law," observing that criminal law provided a means of regulating the conduct of those who could not pay damages. More recently, legal scholars such as Richard Posner have refined this point. In "An Economic Theory of the Criminal Law" 85 Columbia L.Rev. 1193, 1195 (1985), Judge Posner argued that, from an economic standpoint, it is rational to punish the indigent with a loss of liberty because for those with no hope of ever having financial means, monetary consequences of misconduct have little deterrent value.

In Humphrey and Dueñas we see judges appearing to abandon those rationales in favor of a recognition that principles such as equal justice and social equality have their own value, even if they are hard to quantify. Whether this recognition will overcome budgetary constraints or political inertia in the long term remains to be seen.

The recent judicial revelations of Humphrey and Dueñas are not without their legislative corollaries. In the past two years, the Legislature has enacted laws prohibiting the suspension of licenses for failure to pay fines, and purporting to abolish bail in favor of a system of pretrial detention based on risk to public safety.

The trend appears in the federal courts as well, at least on the west coast. Shortly after Humphrey, Judge Charles R. Breyer of the Northern District of California ordered the release of a San Francisco defendant after the state trial court repeatedly failed to consider non-financial conditions of his release in Reem v. Hennessey, 17cv6628 (N.D. Cal. Dec 21, 2017). In September 2018, the 9th U.S. Circuit Court of Appeals held in Martin v. City of Boise, 902 F.3d 1031 (9th Cir. 2018), that prosecution of homeless persons for camping on public property violates the Eighth Amendment when no other shelter is available.

There have always been ideals at stake in criminal courts that are bigger than any one case. Our constitutional jurisprudence has long recognized that principles of fairness, equal protection, due process and limited government will sometimes necessitate forgoing criminal punishment in an individual case. The most common example is when an accused is freed not because he is factually innocent, but because the government violated some important right or simply failed to prove its case with competent evidence. Few would argue that we should sacrifice values important to a free society (such as limits on prosecutorial power) for the sake of punishing a single criminal defendant in a routine case. Humphrey and Dueñas simply recognize what public defenders have long known: that procedural justice is often as important as -- and a necessary prerequisite to -- substantive justice. If substantive and equal justice is the desired result of the criminal process, then it makes little sense to fine a defendant out of all proportion to his or her financial means, or to jail that person pending trial without an opportunity either to address the underlying causes of misconduct or to prove that he or she can be law abiding outside a custodial setting.