An Unlikely Alliance: Jeff Sessions, the Working Poor, and the Civil Rights Division

by Cecilia Aguilera

Jeff Sessions Official Photo available at http://www.sessions.senate.gov/public/index.cfm/official-photo

Jeff Sessions Official Photo, available here

Much has been made about the future of the Civil Rights Division following the nomination of Senator Jeff Sessions to be Attorney General, as advocates continue to raise concerns about his civil rights record.[1]  Still, others have presented a complicated portrait of the nominee.  According to one witness at Sessions’ confirmation hearing, “[n]o one has been more committed or engaged than Senator Sessions in protecting and promoting the interests of black workers in America,” who have been especially susceptible to “los[ing] jobs or hav[ing] their wages reduced.”[2]  Further, Sessions “positions himself as a champion of the working class and expounds . . . a belief that the world is divided between working people and elitist ‘masters of the universe[.]’ . . . ”[3]  As Attorney General, Sessions will find in the Civil Rights Division a formidable tool for protecting the interests of the working poor, and should use the Division to target practices that commercialize the criminal justice system.  Of particular concern should be modern-day peonage practices taking root in some jurisdictions.

In recent years, civil liberties groups have raised alarm about the incarceration of defendants who are unable to pay court-imposed fines, in violation of Tate v. Short and Bearden v. Georgia.[4]  In some jurisdictions, defendants have been required to work to pay off their fines.[5]  This type of labor evokes peonage,[6] a post-Reconstruction practice that effectively re-established slavery in the South.[7]

Under the Thirteenth Amendment, courts may impose involuntary servitude “as a punishment for a crime whereof the party shall have been duly convicted.”[8]  After the Civil War, Southern governments and businesses developed a system whereby mostly black defendants would be prosecuted and fined under vagrancy laws, and businesses would pay defendants’ fines in return for work agreements.[9]  Defendants who did not want to contract or who violated their agreements faced prison time, which in turn could lead to compelled labor on chain gangs.[10]  By 1914, the Supreme Court had invalidated laws supporting peonage,[11] but the practice may have continued as late as 1969.[12]

According to a recent claim,[13] the City of Jackson, Mississippi has resorted to peonage to collect unpaid fines from indigent defendants.[14]  In that case, each of the plaintiffs owed outstanding fines for traffic and misdemeanor offenses,[15] and were either unemployed or received benefits.  They allege that, under the city’s practices, the courts did not conduct hearings into their ability to pay and ordered them to be incarcerated.[16]  For each day that they spent in jail, the plaintiffs were credited $25.00 toward their fines, but could have their fines reduced by $58.00 per day if they agreed to work on the county penal farm.  According to the complaint, these practices unlawfully “coerced”[17] the plaintiffs into choosing between incarceration and labor.[18]

In Sessions’s home state of Alabama, the City of Montgomery settled a lawsuit claiming that, like those in Jackson, the municipal courts had failed to conduct hearings into the plaintiffs’ ability to pay traffic fines, resulting in their incarceration.[19]  For each day in jail, the plaintiffs’ debts were reduced by $50.00, and by $75.00 if they agreed to perform janitorial services.[20]  The complaint alleged that these practices amounted to peonage.[21]  Under the settlement agreement, a defendant who cannot afford a fine can now choose between community service or a payment plan capped at $25.00 per month.[22]

“Work-or-jail”[23] schemes can harm low-income, law-abiding workers as well.  One study noted that, by increasing the availability of unpaid workers, compelled community service could potentially displace paid workers or reduce their ability to negotiate,[24] thus contributing to less safe work environments.[25]  This is not to negate the value of sentencing a defendant to community service.  It can offer an equitable alternative for defendants who cannot afford to pay fines; without it, under Tate and Bearden, only middle- and higher-income-earning defendants could be punished for certain offenses, raising equal protection issues.  Economic harm can result, however, when governments and companies come to rely on “work-or-jail” programs without significant restrictions.[26]

The practices alleged in Jackson and Montgomery can exact further consequences for low-wage workers.  Although some scholars have expressed concerns about requiring defendants to perform community service under the threat of imprisonment,[27] when carefully implemented, it frees defendants to care for their families, avoid debt, and retain employment.  It also spares taxpayers the costs associated with maintaining a defendant in jail, allows the government to draw taxes from working defendants, and permits defendants to continue to spend their incomes in local economies.  Conversely, peonage-like schemes provide none of these advantages and embody the very harms that Tate and Bearden sought to prevent.

Under the Obama Administration, the Civil Rights Division worked to combat the “criminalization of poverty.”[28]  The Division’s Special Litigation Section investigates state and local criminal justice systems for patterns and practices that violate residents’ civil rights[29] and develops reform agreements to address such violations.  For example, in 2015, it released a report on fining practices used in Ferguson, Missouri, which it found could “generate crippling debts, result in jail time because of an inability to pay, and result in the loss of a driver’s license, employment, or housing.”[30]  Another section, the Criminal Section, prosecutes civil rights violations by officials acting under the “color of law,”[31] a strategy that, in some cases, is more efficient and successful than civil claims brought by criminal defendants.

Given the “law and order” platform on which Donald Trump based his campaign,[32] Sessions is unlikely to adopt such an approach.  But a failure to address practices that treat poor defendants as a source of revenue and labor would be to neglect a population to which the new Administration owes its success.[33]  Continuing the Civil Rights Division’s efforts to protect underserved groups would represent a significant gesture toward these voters, and offer greater economic security to local communities.  If Session truly supports the working class, he will act to preserve the Division and its legacy.

[1] See, e.g., Josh Gernstein, Sessions pick as AG could spark exodus from civil rights division, Politico (Nov. 18, 2016), http://www.politico.com/story/2016/11/jeff-sessions-attorney-general-civil-rights-division-exodus-231646; Sari Horwitz and Ellen Nakashima, Jeff Sessions is expected to bring sweeping changes to the Justice Department, Wash. Post (Nov. 18, 2016), https://www.washingtonpost.com/world/national-security/jeff-sessions-is-expected-to-bring-sweeping-changes-to-the-justice-department/2016/11/18/f480019c-ad93-11e6-8b45-f8e493f06fcd_story.html?utm_term=.bec1b2fbf7c6; Julia Edwards Ainsley and Patricia Zengerle, Conservatives have concerns about Sessions as Trump’s attorney general, Reuters (Nov. 18, 2016), http://www.reuters.com/article/us-usa-trump-sessions-newsmaker-idUSKBN13D22Y; see also Attorney General Nomination: Hearing on the Nomination of Jefferson Beauregard Sessions to be Attorney General Before the S. Comm. on the Judiciary, 115th Cong. (2017) (statement of Rep. John Lewis); Attorney General Nomination: Hearing on the Nomination of Jefferson Beauregard Sessions to be Attorney General Before the S. Comm. on the Judiciary (statement of David Cole, Legal Director, American Civil Liberties Union).

[2] Attorney General Nomination: Hearing on the Nomination of Jefferson Beauregard Sessions to be Attorney General Before the S. Comm. on the Judiciary, 115th Cong. 2 (2017) (statement of Peter Kirsanow, Commissioner, United States Commission on Civil Rights).

[3] Ellen Nakashima and Sari Horwitz, Trump’s pick for attorney general is shadowed by race and history, Wash. Post (Dec. 24, 2016), https://www.washingtonpost.com/world/national-security/trumps-pick-for-attorney-general-is-shadowed-by-race-and-history/2016/12/24/1432cffa-b650-11e6-959c-172c82123976_story.html?utm_term=.5febee7fd7a4.

[4] See Johanna Smith, Fighting Modern Day Debtors’ Prisons in the American Justice System, Geo. J. on Poverty L. and Pol’y Blog (Jan. 31, 2016), https://gjplp.org/2016/01/31/modern-day-debtors-prisons/.

[5] See Noah Zatz et al., Get to Work or Go to Jail: Workplace Rights Under Threat, UCLA Institute for Research on Labor and Employment 2 (March 2016), http://www.labor.ucla.edu/publication/get-to-work-or-go-to-jail/; see also Shutting Down Debtors’ Prisons, Equal Justice Under Law, http://equaljusticeunderlaw.org/wp/current-cases/ending-debtors-prisons/ (last visited Dec. 29, 2016).

[6] See id. at 3; see also Tamar R. Birckhead, The New Peonage, 72 Wash. & Lee L. Rev. 1595, 1655-61 (2015)

[7] Birckhead, supra note 5, at 1610, 1655.

[8] U.S. Const. amend. XIII, § 1.

[9] See Birckhead, supra note 6, at 1606.

[10] See id. at 1624-25.

[11] See Bailey v. Alabama, 219 U.S. 219 (1911); United States v. Reynolds, 235 U.S. 133 (1914).

[12] See Birckhead, supra note 6, at 1626.

[13] Bell v. City of Jackson, No. 3:15-cv-00732-TSL-RHW, 2015 WL 5949208 (S.D. Miss. Jun. 20, 2016).

[14] Id. at *31.

[15] Id. at *1.

[16] Id.

[17] Id. at *31.

[18] Id.

[19] Complaint at 2, Mitchell v. City of Montgomery, No. 2:14-cv-186-MEF (M.D. Ala. May 23, 2014), available at http://equaljusticeunderlaw.org/wp/wp-content/uploads/2014/07/Complaint.pdf.

[20] Id. at 1.

[21] Id. at 44.

[22] Mitchell v. City of Montgomery, No. 2:14-cv-186-MHT, 2014 WL 110994432, at *5 (M.D. Ala. Nov. 17, 2014).

[23] Zatz et al., supra note 5, at 15

[24] Id.

[25] Id.

[26] See Zatz et al., supra note 5, at 15.

[27] See generally Noah Zatz, What’s wrong with ‘work or jail’, L.A. Times (Apr. 8, 2016), http://www.latimes.com/opinion/op-ed/la-oe-0408-zatz-debt-peonage-20160408-story.html.

[28] Progress and Unfinished Business in the Fight Against the Criminalization of Poverty, Justice Blogs (Nov. 18, 2016), https://www.justice.gov/opa/blog/progress-and-unfinished-business-fight-against-criminalization-poverty.

[29] See 42 U.S.C. § 14141 (2012).

[30] Investigation of the Ferguson Police Department, U.S. Department of Justice, Civil Rights Division 4 (March 4, 2015), https://www.justice.gov/sites/default/files/opa/press-releases/attachments/2015/03/04/ferguson_police_department_report.pdf.

[31] See 18 U.S.C. § 242 (2012).

[32] See Ginger Gibson, Trump, in law and order speech, calls for African-American support, Reuters (Aug. 17, 2016), http://www.reuters.com/article/us-usa-election-trump-idUSKCN10R1P0.

[33] See Nate Cohn, Why Trump Won: Working-Class Whites, N.Y. Times (Nov. 9, 2016), http://www.nytimes.com/2016/11/10/upshot/why-trump-won-working-class-whites.html?_r=0.