LINCOLN, Neb. – Today, the ACLU of Nebraska announced a new prosecutor and court accountability effort focused on the rights of Nebraskans who are financially struggling. The project is the first of its scope in the Cornhusker state.
For the next two years, ACLU of Nebraska law clerks and volunteers will watch hundreds of hours of court proceedings to ensure compliance with state laws that say judges must consider a person’s financial ability to pay cash bail, fines or fees. The new program is starting in Lancaster County with plans to include additional jurisdictions in the coming year.
The program also includes community outreach. The ACLU of Nebraska recently translated forms people can use to request accommodations or discharge of fines or court costs into five common languages spoken in Nebraska. Staff and volunteers will be working to raise awareness of those resources through targeted outreach to local community centers and community groups.
Every week in Nebraska, hundreds of people go before county judges who set cash bail or impose fines or fees during hearings that typically last no more than five minutes. State law requires individualized considerations of each person's ability to pay, but not all prosecutors or judges take time to meaningfully assess this or make each person aware of their right to request alternatives. These alternatives can include payment plans, community service, or discharge of fines and fees.
Court watching programs at other ACLU affiliates have led to ongoing class-action lawsuits, but ACLU of Nebraska Legal Director Adam Sipple said he hopes to avoid the need for litigation; instead, the program aims to achieve buy-in from all stakeholders in the criminal legal system, including judges and prosecutors, to ensure best practices in the imposition of bail and fines under current law and ultimately build public support for replacing the cash bail system.
Although the U.S. formally abolished the incarceration of people who failed to pay off debts two centuries ago, cash bail without safeguards can effectively create a modern-day debtors’ prison, where people are held in jail only because they cannot afford to pay an assessed bail, fine or fee.
“Freedom should not depend on how much money you have,” Sipple said. “When someone’s ability to pay isn’t appropriately assessed or meaningfully considered, cash bail effectively creates a two-tiered system of justice where people who can afford their release go home while others unnecessarily suffer in jail. That jail stay can cost someone their job and cause other devastating collateral consequences. If we’re going to make sure Nebraskans have equal access to justice, regardless of what they can afford, we need everyone working together.”
The new project continues the ACLU of Nebraska’s work on the need for bail reform. The organization’s 2016 report “Unequal Justice” found stark racial disparities in jail pretrial populations and a trend of judges assigning Nebraskans of color higher bail than white defendants for the same offenses.
Since the report, the Nebraska Legislature has passed laws requiring consideration of ability to pay but racial disparities continue today. According to census data, about 4% of Lancaster County residents are Black. As of last Wednesday, roughly 34% of people in Lancaster County Jail’s pretrial population were Black. Likewise, census numbers show under 12% of Douglas County is Black, but as of last Wednesday, more than 48% of people in Douglas County Jail’s pretrial population were Black.
Nationally, research has shown that people who are held pretrial because they are unable to pay bail are more likely to accept a plea deal, even if they have a valid defense.
Program volunteer Demetrius Gatson, who works in reentry support, said her own lived experience highlights the need for the ACLU program.
“With every hearing for passing a bad check, never once do I remember a judge asking if the bail was something I could afford. Never once do I remember them asking about family when I had a young son at home who needed me. I’m committed to breaking the cycle in my own life and others’ lives. One way we can do that is by making sure no one is unnecessarily in jail for months when they should be with their families, at their jobs, and connected with the support they need to get their lives on track.”
The launch of the court watching program comes as legislative interim studies begin on poverty and incarceration as well as county fees and fines. A bill that would eliminate cash bail failed to advance out of committee this year but could move forward in 2022.
Senator John Cavanaugh, representing LD 9 in Omaha, said the current system is tilted against Nebraskans who are poor.
"A cash bail of $100 for one individual is no different than a million dollar bail if they cannot post it,” Cavanaugh said. “Too often we assign low dollar bails to low risk behavior and higher dollar bails to high risk behavior but without adequate consideration of the individual's ability to pay. The result is individuals who present a higher risk to society are being released because they have money while a lower risk individual continues to sit in jail because they do not have 100 bucks. This project by the ACLU will help inform future legislative action to help correct this imbalance."
Senator Matt Hansen, representing LD 26 in Lincoln, agreed the new effort will help inform future efforts.
“The Legislature has made thoughtful progress aimed at minimizing the disparate impact of cash bail in recent years. It is important that stakeholders like the ACLU continue to monitor how this progress is implemented day to day in our courts so we can know what next steps to take,” Hansen said.
Law clerks and volunteers have already begun reviewing video and will also attend hearings beginning this summer.
"It is our hope that through this program we will be able to uplift judges who are a good example of how we can move away from using cash bail as nothing more than an instrument for unnecessary incarceration and implement a more just, fairer path for those who are navigating our justice system," said ACLU of Nebraska Law Clerk Riley Wilson.
The project is made possible with generous support from Woods Charitable Fund.