After observing municipal courts throughout South Alabama, federal authorities have praised Mobile as a leader for its reform efforts, while acknowledging that other cities in the area have continued to use unconstitutional practices that penalize poverty.

On Monday, Nov. 7, U.S. Attorney Kenyen Brown went public with some of the results from the Alabama Municipal Courts Observation Report, generated by a study his office launched in June as a collaborative effort to review the practices of 30 municipal courts in the Southern District of Alabama.

Brown said a widely reported shooting involving police in Ferguson, Missouri, prompted his office to ensure local courts are operating constitutionally. While the 2014 incident started a national conversation on police reform, a subsequent Department of Justice report found a pattern of discrimination within Ferguson’s court system that Brown says really drove “some of those disturbances.”

Ultimately, Brown said, the review was intended to ensure people weren’t “unnecessarily entering the criminal justice system” based on their inability to pay municipal fines many cities lean on as an additional source of revenue.

United States Attorney Kenyen Brown. (Jason Johnson)

United States Attorney Kenyen Brown. (Jason Johnson)

“Revenue generation is the major reason for establishing municipal courts, and in some instances, public safety seems to be more of an afterthought,” Brown said. “Ironically, the revenue from these courts is offset in a lot of cases by the cost of putting people in jail.”

It is unconstitutional under the 14th Amendment to incarcerate an indigent debtor unless the person’s failure to pay is “willful.” However, after his office’s review, Brown said investigators found that a number of local courts were still using unconstitutional practices or those that ultimately produced unconstitutional results.

One of the “problematic practices” the report cites is municipalities that criminalize a failure to pay for utility services, which is technically still the case for Baldwin County residents who don’t pay their solid waste disposal bill.

Chickasaw recently repealed a similar policy that made it illegal to live in a structure not connected to the city’s water system — a change implemented only after a local woman’s arrest brought statewide media attention to the city’s 1997 ordinance.

Another dubious practice Brown says has been on the decline is “pay or stay” ultimatums, which occur when a judge orders a defendant to pay fines completely by the end of their initial court date, under threat of incarceration.

Brown said most judges are aware the practice is unconstitutional, but the report still listed “a few” judges in the Southern District who use idle threats of same-day incarceration to motivate defendants to pay their fines — a tactic he described as “saber rattling.”

“Many said they rarely, if ever, enforce those policies and often give people the opportunity to enter into a payment plan with the court,” Brown said. “Nonetheless, this practice of ‘saber rattling’ could discourage people who don’t have the ability to pay their fines from showing up to court and seeking alternatives to incarceration.”

The report also revealed that the measurements judges use to declare indigency often varied from city to city, even though the state has established an across-the-board standard. The same inconsistencies were documented in the setting of bonds.

While citizens can’t be jailed entirely for failing to pay municipal fines, Brown said, they can be jailed for failing to appear in court over those fines. In most of those cases, Brown said, judges set a defendant’s bond amount “at the actual cost of what those fines amounted to.”

“Which is crazy. If they didn’t have the money to pay the fines, how can they be expected to pay that bond? They can’t,” Brown said. “The end result is they’re incarcerated for a failure to pay.”

The report found that one local municipality jailed five defendants for up to 26 days over similar charges that began with municipal fines. In one of those cases, Brown said, the bond exceeded $3,000, which is three times higher than the maximum bond judges can set for a misdemeanor.

However, with the exception of those listed above, the report never indicates in which municipalities these “problematic practices” were occurring. When asked, Brown told Lagniappe that was intentional.

“This approach was more collegial than enforcement based. We appreciate judges were open enough to talk candidly with us about what’s going in their courts,” Brown said. “I think the effort here is to spark reform, which is needed, and not necessarily to call people out.”

That said, the report did recognize a recent overhaul of Mobile’s municipal court system that has sped up the processing time for minor offenses, eliminated bonds in most instances and introduced a number of alternatives to jail time to those who can’t pay fines.

Mobile Mayor Sandy Stimpson said his administration pushed those reform efforts with leadership from municipal court administrator Nathan Emmorey in hopes of making “proactive changes” while they were still optional.

“You don’t feel part of a community if you feel disenfranchised, and if you’re being treated differently because of your inability to pay fines, that is certainly a reason to feel disenfranchised,” Stimpson said.

Emmorey was appointed by Stimpson in 2014 after Mobile had gone nearly five years without a municipal court administrator. Emmorey explained many of the recent changes were about providing justice, though many were also pragmatic.

In addition to streamlining several court functions, Emmorey said the city also redefined how it would use the Mobile County Metro Jail — dropping from an average use of 250 beds per day in 2014 to an average of 41 over the past month.

Emmory said Mobile also aims to serve as an example for other, smaller municipal courts, many of which may also be making changes to their own practices in the wake of the DOJ’s Alabama Municipal Courts Observation Report.

While Mobile has additional revenue streams to cover any income lost in its municipal court overhaul, Emmorey acknowledged smaller cities may not. However, he also said courts without the funding “to provide the due process protections that the Constitution requires” will likely have to make some changes in the future regardless of the importance of that revenue.

“You need to look at how you generate money because we are not an engine to create revenue, we are a purveyor of justice, and sometimes justice costs money,” he said. “So, you’re going to have to resource us, or restructure us to operate in a way where we actually do purvey constitutional justice.”

Alabama Municipal Courts Observation Report