A senior judge in Ohio has taken the unusual step of writing a letter to fellow judges warning them against putting “fine, fee and bail systems” on “automatic pilot.”
“We do not buy and sell a commodity; we perform a public service,” wrote Maureen O’Connor, the chief justice of the state’s Supreme Court.
“Focus on the ‘business’ of the courts appears at times to be overtaking interest in our fundamental responsibility to do justice.”
According to the Institute for Justice, one of the potential problem areas in her state is the existence of “mayor’s courts” in which citizens are “treated as little more than ATMS.”
“Under mayor’s courts, mayors of municipalities with at least 200 residents can preside over their very own court,” IJ explained. “Mayor’s courts are courts in name only: The mayor need not be a lawyer. Proceedings don’t have to be transcribed nor do defendants have a right to a trial by jury.”
But they do impose fines.
“Most perverse of all, any fines and fees collected from a mayor’s court (often from traffic violations) flows to the town’s budget. Clearly, that creates an incentive to rule against defendants, which shreds any appearance of impartiality,” IJ said. “As a result, many small towns can easily generate hundreds of thousands of dollars in revenue from a mayor’s court. Considering just how small many of these municipalities are, revenue from a mayor’s court can be a tremendous windfall. According to the Ohio Supreme Court, the state has nearly 300 mayor’s courts, which heard almost 300,000 cases in 2016. Almost 75 percent of those courts were in municipalities with under 5,000 people.”
In her letter, O’Connor noted the Justice Department recently rescinded a guidance concerning fines.
“As many of you know, for the past two years I have co-chaired a national task force examining fine, fee, and bail practices to make recommendations for how state courts can bring such practices into greater alignment with constitutional standards,” she wrote. “The need for the task force was the result of unfortunate practices in some state and local courts where fine, fee, and bail systems essentially operated on ‘automatic pilot’ with little, if any, regard for fundamental constitutional rights.”
She said she has “spoken out unequivocally that courts are centers of justice, not automatic teller machines whose purpose is to generate revenue for governments, including themselves.”
O’Conner explained that she was sending to each judge the legal guidelines for appropriate fines.
“I know the pressure that many of you face to generate revenue, to increase collection rates, to ‘self-fund’ as if the courts are a business trading in a commodity,” she said.
But she said her concern was so high that she wrote to State Auditor David Yost with her worries.
She told him: “If the existence of a court is dependent upon self-funding, we run the danger of creating a system of built-in incentives for courts to use judicial power for self-preservation not the promotion of justice for all. … Judges and court staff cannot be seen as collection agencies.”
O’Connor said Yost responded in agreement, after she told him, “Whether courts contribute to a city’s bottom line or generate sufficient cash flow for its own operations should not be even a secondary thought considering the role of the judiciary in our system of government.”
The institute commented that ridding the state of the mayor’s courts would be a good start, along with reining in the power of civil forfeiture laws, under which law enforcement agencies keep for themselves what they confiscate from citizens, even if no charges are filed, as is allowed in many jurisdictions.
“As long as law enforcement can keep what they seize, Ohio’s police and prosecutors will have a powerful motivation to prioritize forfeiture cases and treat forfeiture money as their own private slush fund. To eliminate this incentive, lawmakers should follow the lead of seven states and Washington, D.C., and redirect any and all forfeiture proceeds to a neutral fund, like the state general fund or drug treatment programs,” IJ said.
O’Connor said providing a justice system is a function of government, just as is providing schools, roads and fire protection.
She explained that no matter what the DOJ says in its guidance letters, “we are as responsible for both abiding by and protecting constitutional rights as are our federal counterparts.”