By Ted Wheeler, Courthouse News Service

LINCOLN, Neb. (CN) — Fees and penalties in Nebraska’s judicial system have created “modern-day debtors’ prisons” so ruthless they have left 10 percent of the state’s children with a parent in jail, the ACLU says in a new report.

The 72-page report, “Unequal Justice: Bail and modern-day debtors’ prisons in Nebraska,” (pdf)  concludes that the state has created a tiered system of justice that discriminates against poor people and racial minorities by requiring bail as a condition of pretrial release even for misdemeanors, and charging fines and fees after criminal conviction.

As a result, people who cannot afford even court costs are held in jail, lose their jobs and housing, and separated from their children.

“For too many low-income Nebraskans, our justice system has become a dizzying maze of fines and fees from which they cannot escape,” said Danielle Conrad, executive director of the ACLU of Nebraska, which wrote the report.

“People are being jailed simply because they cannot afford fines or fees set by the courts and many times these are set without an individualized inquiry into their ability to pay. The practice is unconstitutional and has devastating impacts on real Nebraska families who are torn apart by these actions,” Conrad said.

“One in 10 children in Nebraska have a parent who is behind bars,” according to the report. Coincidentally, or not, “One in 10 Nebraskans are people of color,” according to the executive summary. However, “More than five in 10 Nebraskans in jail pretrial are people of color.

“Before they even get to trial, Nebraska defendants charged with nonviolent offenses spend an average of 48 days behind bars,” the summary states. “This research shows a clear and disturbing overrepresentation of people of color behind bars in Nebraska as well.”

The ACLU calls this not only unconstitutional, but a “waste of taxpayer money and resources,” because “incarcerating low-income people prior to trial or requiring an indigent defendant to sit out a fine costs much more than counties actually recoup.”

A recurring theme in the report is that one size does not fit all economically, in fines and fees.

Lancaster County’s public defender Joe Nigro says the state’s bail and fine systems criminalize poverty.

“Pretrial release programs which screen people for risk factors and can access the level of supervision needed are more effective at assuring someone appears in court than simply rewarding the person who can come up with a set amount of money,” Nigro said. “For one person, $100 is the same as $10,000 for another.”

The report was based on in-depth studies of the state’s four largest counties, including Lancaster, home of the state capital, Lincoln.

Nebraska’s State Court Administrator Corey Steel told Courthouse News that the state is working to provide equal access to justice in its courts.

“Nebraska’s courts want to do everything possible to safely reduce the number of individuals put in jail, particularly those incarcerated for nonpayment of fines and fees. Our courts have programs in place to accept time payments, community service in lieu of payment, or the waiver of fines after seeing a good faith effort toward payment,” Steel said.

In Nebraska, $90 is deducted from an offender’s fine for each day spent in jail, about the same as court costs, according to the report.

Researchers examined court records from the four counties — Douglas, Sarpy, Lancaster and Hall — and observed proceedings in 10 courtrooms while collecting the information.

Here are some of their findings:

More than half of those who cannot afford bail are people of color;

Black, Latino and Native Americans are typically charged over $10,000 more in bail than white people;

More than half of those jailed because they cannot pay bail are accused of nonviolent crimes;

The average bail for white people in the four counties jailed for nonviolent offenses was $35,256; it was $47,847 for black people, and $62,659 for Latinos.

The combined jail budget of the four counties surveyed is estimated at $73 million for the 2017 budget year, the cost of those extra days in jail is being borne by the whole community, which will “strain county budgets and burden taxpayers unnecessarily,” according to the report summary.

Stories in the report present cases of people who have suffered from the system. Janet, a 46-year-old woman who was sleeping in her car and homeless, was arrested for “soliciting donations near a roadway.” She was arrested and jailed under $1,000 bond, and told she could bail out if she could post 10 percent of it.

“I didn’t have $100,” she told the ACLU. “That’s why I was standing on the corner in the first place.”

The ACLU recommends that Nebraska establish a commission of judges, attorneys, legislators, probation officers, law enforcement and civil rights advocates to evaluate best practices in bail systems.

It recommends that the state courts develop an actuarial risk-assessment for defendants in custody, that judges ensure appointment of counsel before imposition of bail, and to stop sending poor people back to jail because they cannot afford to pay their fines.

To Learn More:

            Unequal Justice: Bail and Modern Day Debtors’ Prisons in Nebraska (ACLU) (pdf)

Judge Behind Louisiana “Debtor’s Prison” Agrees to 75-Day Break from Harsh Rulings against Poor Defendants (Associated Press)

New Orleans Criminal Court Systems Accused of Milking the Poor with Exorbitant Fees (by Noel Brinkerhoff and Steve Straehley, AllGov)

Debtor’s Prison Charges Leveled at Austin, Texas (by Noel Brinkerhoff and Steve Straehley, AllGov)