Justice Department rolls back guidance on fining poor defendants

The Justice Department on Thursday rescinded a tranche of agency-issued “guidance documents” that explained and interpreted policy across a range of issues, including a 2016 memo that cautioned courts against the burdensome enforcement of fines for criminal offenders.

The document crunch comes as Attorney General Jeff Sessions has spent the better part of a year reversing Obama-era policies and legal interpretations, aligning the Trump Justice Department with administration priorities of deregulation and a “return to the rule of law.”

In total, 25 guidance documents dating from the Obama administration and earlier that were deemed to be “outdated, used to circumvent the regulatory process or that improperly went beyond what is provided for in statutes or regulation” were rescinded, Sessions said.

In a statement, Sessions said he was ending “the longstanding abuse of issuing rules by simply publishing a letter or posting a web page.”

The documents were identified by a Justice Department task force operating under an executive order signed by President Donald Trump in March and were listed in a statement issued by the department late Thursday. The Justice Department did not provide specific reasoning behind the dissolution of each document.

Advocacy groups were quick to criticize the elimination of the guidance around fines and fees levied against poor defendants.

In the March 2016 “dear colleague” letter, sent to state court administrators and chief justices across the country, Justice Department civil rights officials wrote that the guidance was “intended to address some of the most common practices that run afoul of the United States Constitution and/or other federal laws and to assist court leadership in ensuring that courts at every level of the justice system operate fairly and lawfully.”

The letter does not prescribe new policy and cites case law to back up mandates like “Courts must consider alternatives to incarceration for indigent defendants unable to pay fines and fees.”

“This is a disappointing decision that supports criminalizing poverty,” said Lauren-Brooke Eisen, senior counsel in the Brennan Center’s Justice Program, said of DOJ rescinding the 2016 memo. “Fees and fines are frequently levied against individuals who can’t afford to pay. It’s a perverse, profit-based framework that helps spin the revolving door of the criminal justice system.”

The change marks another chip made by Sessions at the progressive reform pushed in his predecessor’s department.

In May, Sessions told prosecutors to “charge and pursue the most serious, readily provable offense” against criminal suspects, and in October he declared in a memo that a 1964 federal civil rights law does not protect transgender workers from employment discrimination — both times upending guidance issued under the Obama administration.

Some of the memos revoked Thursday, including requirements under the Bureau of Alcohol, Tobacco, Firearms and Explosives and guidance on portions of the Americans with Disabilities Act, appeared to be merely older versions of current memos, or items now made redundant by updated policies.

Several others appeared to be FAQ sheets meant to explain on-the-books laws for practitioners, including one 1999 document that concerned “Common (Americans with Disabilities Act) Problems at Newly Constructed Lodging Facilities.” In one example listed in the manual, the DOJ provided mechanical solutions for disability law compliance meant to aid “persons who have the use of only one hand or who have limited use of hands, wrists, or arms (and) are unable to open doors.”

One memo that offered explanations of Sections 4(b) and 5 of the Voting Rights Act appeared to have been rendered moot by a Supreme Court ruling four years ago. The Supreme Court had held in 2013 that it was unconstitutional to use the coverage formula in 4(b) to determine which jurisdictions are subject to the preclearance requirement when it comes to the voting law changes of Section 5.

Two letters sent to individual attorneys that were rescinded Thursday offered guidance on certain provisions of the Immigration and Nationality Act. In one, an employer sought clarification on how his human resources department should respond when it inadvertently discovered a potentially forged Social Security card long after the hiring of an employee, who might possibly be an undocumented immigrant. The letter was specific as to not offer an opinion but instead restated federal immigration law that prohibits hiring or firing on the basis of immigration status.

In the second letter, an immigration attorney sought guidance on the anti-discrimination provision of the law pertaining to legal permanent residents and when they may seek eligibility for citizenship.

Both letters were outdated and were revoked because subsequent guidance on the subjects had been issued, a DOJ official explained.