Highway Robbery: Toolkit for Prosecutors

DETROIT JUSTICE CENTER LEGAL SERVICES AND ADVOCACY PRACTICE

TRAFFIC ENFORCEMENT TOOLKIT FOR PROSECUTORS THE PROBLEM Criminal law, especially as it relates to traffic enforcement, often penalizes people for being poor, with little or no benefit to public safety. For example, it is a misdemeanor to drive on a suspended license, but when someone’s license is suspended only because they have been unable to pay fines and fees or appear in court, the license suspension has no relationship with how safe they are as a driver, but everything to do with how poor they are. Thus, prosecuting someone for driving when their license is suspended for unpaid tickets is effectively prosecuting them for being poor. Additionally, because poverty disproportionately affects black and brown people, this also means that laws that criminalize poverty have a racist impact, even if they are not explicitly racist.

THE SOLUTION Prosecutors have immense discretion at their fingertips, giving them many opportunities to think critically about an individual’s circumstance and use their discretion to improve life outcomes for those who touch the legal system due to economic hardship and/or racialized over-policing. Particularly in the context of traffic infractions, traffic offenses and trafficcourt related fines and costs, it is imperative that prosecutors implement the following: • Decline to Prosecute/Dismiss: Prosecutors should decline to file or dismiss traffic civil infractions and misdemeanors, especially where the underlying issue is one of poverty rather than a true danger to public safety. For example, defective equipment infractions often occur because a person can’t afford the repair. Additionally, a reasonable person wouldn’t choose to drive without insurance if they could afford the cost of driving protected or had another transit option. Similarly, a person who drives with a suspended license is not an unsafe driver or inherent danger to others if they would otherwise have a valid license but-for their inability to pay the fine(s) that caused their license suspension. Prosecutors should also adjourn cases to allow a person time to clear their driving record or otherwise get on their feet, while also lifting any warrants or suspensions in their jurisdiction. As an individual makes headway, the prosecutors should dismiss cases as early as possible to support their progress. Further, prosecutors should recommend to judges not to issue warrants for failure to appear or failure to pay in traffic cases, and to recall warrants that were already entered, particularly where the underlying offense is one that no longer results in a driver’s license suspension by the Secretary of State under new laws.

• Personal Bonds: Prosecutors should recommend personal bonds in all traffic related misdemeanor matters, particularly where a person is indigent. Courts utilize bonds to generate revenue through forfeiture when one fails to appear, by seizing and applying the bond amount to fines and costs when one does appear, and by keeping a bond fee from each bond. However, bonds do little to secure a person’s appearance at their next hearing, especially if an individual’s financial hardship is causing them to face other dire life circumstances. For example, an individual who is facing eviction and is ineligible for leave at their job to attend a mid-day hearing might choose to lose their bond over losing their employment, home, and jeopardizing their custody of their children.1

Additionally, pre-established bond amounts that are not individualized determinations (e.g. $700 bond to clear a DWLS warrant) often act as insurmountable barriers for indigent individuals. For example, a housing unstable person who never received notice of their hearing date due to having no valid address or living out of their vehicle, might not have the money to clear their warrant and get a new court date by posting bond.

In lieu of money bond, prosecutors should work with their courts to utilize strategies that have proven effective, such as digital reminders (text/email), advance rescheduling options, tele-hearing or remote hearing options, and allowing children in courtrooms, so that parents without childcare can still attend.

• Reductions: Prosecutors should always reduce misdemeanors to civil infractions and should seek to reduce abstracted civil infractions that carry points to non-abstracted civil infractions without points. Misdemeanors, even “minor” traffic misdemeanors, can affect a person’s employability, job prospects, and general ability to pass background checks. Similarly, abstracted civil infractions and points can impact an individual’s insurance rates, increasing the likelihood that they will be unable to afford insurance to drive legally and protected in the future.

• Ability to Pay Considerations: Prosecutors should always consider an individual’s ability to pay when recommending any fine, fee, or court cost, and should recommend reductions or elimination of these amounts whenever possible. For example, even something that a prosecutor might consider a nominal fee can send a person who is already living paycheck to paycheck into a debt spiral. Additionally, many times, payment plans can be unduly burdensome on individuals who are unemployed or otherwise experiencing hardship. Prosecutors should seek to ensure that payments amounts are low enough that the particular individual can reasonably afford them on their income, or lack thereof. Also, because many individuals may have been threatened with unconstitutional “pay or stay” practices2 in the past, prosecutors should also make clear that the person can indicate if a particular payment arrangement is not feasible for them, without fearing incarceration due to their indigence. Prosecutors should also encourage the judge in their courtroom to lay out what a person should do if they will be short on a payment (e.g. contact the court) and what to expect in the event they do miss a payment (e.g. clearly explain the show cause hearing process upfront). Lastly, where a person is indigent, prosecutors should recommend to judges during sentencing considerations that all late fees, warrant fees, and other supplemental fees be waived, to alleviate the burden of these additional costs.

NOTES 1 The scenarios listed throughout this document are the actual circumstances navigated by various Detroit Justice Center clients.

2 “Pay or stay” is the unconstitutional practice of courts requiring one to pay a fine or spend days in jail if they cannot afford to pay.

To read our full report on the traffic enforcement system, visit DETROITJUSTICE.ORG/HIGHWAYROBBERY