Delivering a second slam against the city in as many months, the ACLU of Colorado last week accused municipal judges of jailing people simply because they're poor — a violation of a 2014 state law as well as the U.S. Constitution.
In September, the ACLU accused the city of prosecuting people for violating the city's panhandling ordinance, although they hadn't actually violated it. The ordinance exempts those who simply hold a sign asking for donations, but the city had prosecuted them anyway. In response, City Attorney Wynetta Massey said police were instructed to stop arresting people for passive panhandling, the court had dismissed pending cases and she was preparing a change to city code to clarify that passive begging is not a crime.
On Oct. 22, ACLU legal director Mark Silverstein said an ACLU investigation found that hundreds of people since Jan. 1, 2014, had been thrown in jail simply because they couldn't pay fines for offenses that didn't carry a jail term.
He termed the practice "pay or serve," meaning if someone can't pay the fine, he or she is jailed for one day per every $50 of fines due. So a $500 fine would result in 10 days in jail. One homeless man ended up serving nearly 100 days for a non-jailable offense because he was too poor to pay the fines, Silverstein said.
Citing a 1971 court decision that banned courts from converting unpaid fines to jail time if a defendant can't afford to pay, he said, "What the Supreme Court prohibited is exactly what the municipal court is doing."
The city pays $31.20 per day to incarcerate people in the county jail on municipal warrants, although the city pays nothing if the person is in jail on county or state charges. That said, Silverstein made the point that the city's policy is costing taxpayers untold dollars for keeping people in jail illegally.
"We're asking the city to step up and do the right thing," he said. That includes setting up a fund that would compensate those jailed under the "pay or serve" policy. Silverstein wouldn't speculate on how much that fund should contain.
The city issued a statement in response, saying the City Attorney's Office doesn't believe the city violated the U.S. Constitution or Colorado law. However, the statement added, "We do take the ACLU's allegations seriously, and therefore, the City Attorney is working in conjunction with the Municipal Court in order to gather all the appropriate facts and respond to the letter at length."