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Mississippi Judges Can No Longer Target Blacks and Others with Unfair Bail Practices

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Time has passed and laws have been changed, yet the deck has remained stacked against many Black people and others minorities in Mississippi, with Black and brown bodies disproportionately funneled into a prison system eager for free labor. Plagued by legal woes, the state has been hit with a number of lawsuits regarding its treatment of African-American residents, including a suit filed by the ACLU that accused Madison County of designing checkpoints to create additional revenue via unwarranted searches and traffic tickets.

It’s a practice that Jennifer Riley-Collins, executive director of the ACLU in Mississippi, describes: “These practices force thousands of people to live in fear and under constant threat of being subject to suspicionless searches and arrests simply because of the color of their skin.” 

Teaming up with the Roderick and Solange MacArthur Justice Center, the ACLU of Mississippi recently reached a settlement in Burks v. Scott County, Mississippi, a class-action lawsuit that will impact four Mississippi counties.

At the heart of the suit are Josh Bassett and Octavious Burks, both arrested and held in Scott County for nearly a year without being formally charged or appointed an attorney. The ACLU condemned the inexcusable loophole that allowed this to happen. “Unlike in the federal system and in most states, Mississippi places no limit on how long a person can be held in jail before the prosecution obtains an indictment. The plaintiffs languished in jail because a local judge set cash bail at amounts neither could afford, and they had no attorney to argue for their release.”

“Mississippi has been locking up poor folks without a lawyer and without the ability to make bail for as long as anyone can remember. Desperate and hopeless, many people plead guilty to offenses they didn’t commit just to get back to their families. We should be ashamed of ourselves. My hope is that other Mississippi counties also will decide to abide by the Constitution and implement similar changes,” said MacArthur Justice Center Director Cliff Johnson.

But as the 102-page Ferguson Report revealed, Mississippi is not alone in using unfair bail practices to target minority residents. The Department of Justice concluded that the Missouri police system had engaged in “a haphazard bond system that results in people being erroneously arrested, and some people paying bond but not getting credit for having done so. Documents describe officers finding hundred-dollar bills in their pockets that were given to them for bond payment and not remembering which jail detainee provided them.”

Just a year before the death of Ferguson teen Michael Brown would rock the world, the report discovered that “In 2013 alone, the court issued over 9,000 warrants on cases stemming in large part from minor violations such as parking infractions, traffic tickets or housing code violations. Jail time would be considered far too harsh a penalty for the great majority of these code violations, yet Ferguson’s municipal court routinely issues warrants for people to be arrested and incarcerated for failing to timely pay related fines and fees.”

For Bassett and Burks, similar practices used in Mississippi’s Leake, Neshoba, Newton and Scott counties resulted in each losing eigt and 10 months of their lives behind bars, respectively, all because they couldn’t afford to post bail. The right to counsel, a fair bail hearing and a speedy trial are granted by the Constitution’s Sixth and 14th Amendments, an inconvenient truth that’s been ignored in rural Mississippi for far too long.

In an ACLU press release detailing the decision, Brandon Buskey, senior staff attorney of the Criminal Law Reform Project explained, “In these four counties, thousands have had weeks, months, and even years of their lives stolen from them because they could not afford an attorney or purchase their freedom.” Adding, “This settlement closes those trap doors for the poor.”

To be clear, no one disputes that those committing crimes should be held responsible for their actions. But our Constitution mandates that even the accused are deserving of a fair trial. Under the settlement agreement, these four counties will now be forced to hire a chief public defender, allowing public defenders to represent clients without being dependent on local judges.

While there’s more work to be done, the settlement still serves as a win for the Mississippi justice system. According to Paloma Wu, legal director of the ACLU of Mississippi, “With a chief public defender in place, public defense attorneys in the four counties will finally have the independence they need to represent their clients’ best interests. These attorneys will be able to fulfill their obligations to their clients without influence or interference from the judges.”

Following the verdict, the ACLU provided an update on the decision, writing “Providing legal representation so much earlier in the process will ensure that arrestees have attorneys at their first bail hearings to argue for lower bail amounts and release until trial. The settlement also prohibits the counties from detaining people solely because they can’t afford to pay their bail amounts, a blow to unconstitutional wealth-based incarceration.”

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