The hot-check division of Sherwood District Court and presiding Judge Milas Hale III have for years violated the civil rights of the poorest residents in Pulaski County through a "never-ending spiral of repetitive court proceedings and ever-increasing debt," alleges a federal lawsuit filed Tuesday.
The American Civil Liberties Union of Arkansas and the national Lawyers' Committee for Civil Rights Under the Law filed the lawsuit in Little Rock on behalf of four people who the suit says have been caught in and abused by the system. as well as a Sherwood man who says the system of fines, warrants and jailings without representation has resulted in the misuse of public funds.
The ACLU and the Lawyers' Committee want the lawsuit to be certified as a class-action and the five plaintiffs to be appointed representatives of a class of thousands.
The ACLU has filed similar lawsuits in Georgia, Washington, Mississippi and Michigan. Rita Sklar, executive director of the Arkansas ACLU, said she didn't conduct a statewide investigation of court systems across Arkansas but chose to concentrate on Sherwood because it is "notorious" for the practices.
[DOCUMENT: Click here to read the lawsuit.]
"They're making money on the backs of poor people," Sklar said. "It's as simple as that. The nonpoor people don't end up in jail."
The lawsuit states that "local courts and municipalities throughout Arkansas have for years used the threat and reality of incarceration" to "slowly and insidiously" erode citizens' fundamental rights.
But Sherwood District Court, in particular, "has become notorious throughout the community for zealously prosecuting misdemeanor violations of the Arkansas Hot Check law, creating a system used by local officials to criminalize those who do not have enough money to cover bounced checks," the suit alleges. "Through a labyrinthe -- and lucrative -- system, a single check for $15 returned for insufficient funds can be leveraged into thousands of dollars in court costs, fines and fees owed to Sherwood and Pulaski County. These costs are borne by the poorest and most disadvantaged citizens in the community."
Kristen Clarke, the executive director of the Lawyers' Committee, called the Sherwood court a "poster child" for the committee's nationwide investigation into the jailing of poor people for failure to pay fines. She said, "We think this case represents a broad, systemic issue that is present in many courts across the country."
Hale did not returned reporters' phone calls about the lawsuit, and neither did Sherwood Mayor Virginia Hillman Young, Sherwood City Attorney Steven Cobb, Pulaski County's County Judge Barry Hyde or Pulaski County Prosecuting Attorney Larry Jegley.
In a news release, Clarke called the Sherwood court "a modern-day debtors' prison." She said, "The resurgence of debtors' prisons across our country has entrapped poor people, too many of whom are African-American or a minority, in a cycle of escalating debt and unnecessary incarceration."
She also said, "The Sherwood District Court epitomizes the criminalization of poverty and the corrupting effect of financial incentives on our local courts. Not only does this 'Hot Check' court completely ignore the long-standing principle that a person cannot be punished because they are poor, but by using coercive practices to collect money from the poorest Arkansans, this ... scheme generates huge revenues for the city. Revenue from the district court constitutes nearly 12 percent of the city's budget, second only to city and county sales tax."
The lawsuit asks U.S. District Judge James Moody Jr. to find that the system violates the plaintiffs' constitutional rights under the U.S. and Arkansas constitutions. It also asks Moody to enjoin Sherwood and Pulaski County from continuing the practices and seeks an order requiring both governmental agencies to refund misused public funds.
Through an informal agreement in the mid-1970s, the Sherwood court prosecutes most of Pulaski County's misdemeanor hot-check violations.
The lawsuit notes that the county, the city, Hale, and various court clerks and personnel have developed a policy of arresting, prosecuting and jailing people who can't pay previous court costs, fines and fees, "without making a proper inquiry into whether those persons are able to pay and without considering alternatives to imprisonment."
A state law requires courts to consider a defendant's ability to pay when imposing fines or penalties for nonpayment, according to the suit.
It also alleges that defendants in the Sherwood court aren't provided adequate representation by attorneys or even given a chance to knowingly waive their right to counsel.
The suit accuses Sherwood and Pulaski County of "systematically" closing courtroom proceedings to the public, "thereby creating an atmosphere of confusion and intimidation."
During "Hot Check Court" every Thursday, according to the suit, defendants line up outside the courtroom to face new hot-check charges or court-ordered "review hearings" to monitor their payments. It says court bailiffs announce that the courtroom "is not open to the public," including family members and friends of defendants.
"The Sherwood District Court holds no hearing on the closure of the criminal proceedings to the public and does not consider the effect of the closure on a defendant's right to a public trial as required by the United States Constitution," the lawsuit alleges. "No recordings of the proceedings are prepared and no transcript is made available to the public. ... The secrecy shrouding proceedings in Sherwood District Court also ensures that violations of hot checks defendants' constitutional rights, as alleged in this complaint, go unchecked and unchallenged."
Although a public defense attorney is in the courtroom, that person doesn't actually represent the hot-check defendants, who "are forced to appear alone and without counsel," creating "an atmosphere of intimidation and desperation," the suit alleges.
It notes that the Pulaski County public defender's office doesn't represent criminal defendants in the Sherwood court, but that Sherwood contracts with a private attorney to provide services to indigent defendants. However, it says, that person "actually appears for few, if any, of the defendants," according to policy.
The proceedings "are perfunctory and operate like an assembly line," generally lasting less than one or two minutes, the suit says.
It notes that while Pulaski County deputy prosecuting attorneys are present, they "rarely, if ever, participate or speak in open court," having abdicated their prosecutorial duties to Hale and court personnel "in a manner that is is inconsistent with the adversarial system of justice."
The judge will record that a defendant has pleaded guilty if the person admits to writing the check in question, the suit contends. If the defendant denies writing the check in question, it says, the judge will often compare the signature on the check to the defendant's waiver of counsel form -- which must be signed in order to enter the courtroom -- and try to "elicit an admission of guilt based on this evidence."
It says Hale, a part-time judge on the court for nearly 20 years, routinely fails to notify a defendant of his right to plead "not guilty," the defendant's privilege against self-incrimination, the right to a trial or the right to present evidence in his defense or appeal to Pulaski County Circuit Court.
A defendant convicted of a misdemeanor hot-check charge is typically ordered to pay restitution in the amount of the unpaid check plus a $165 fine, $100 in court costs, a $25 prosecuting attorney hot-check fee, a $30 restitution fee, a $50 warrant fee, a $20 city jail fee and a $20 county jail fee, resulting in penalties exceeding $400 regardless of the amount of the check, according to the lawsuit.
It says the Sherwood court issues an arrest warrant each time a defendant fails to make a payment and uses the warrant as an opportunity to assess more fines and fees. It says Sherwood police track people who owe money to the court to their homes and threaten to arrest them unless they can make a payment on the spot. It says those who can't make a payment are taken to jail on "failure to pay" warrants conducted pursuant to a law that was repealed in 2009.
The lawsuit describes each plaintiffs' individual circumstances in detail. It says one plaintiff, Nikki Rachelle Petree, 40, of White County wrote a single bad check for $28.93 in 2011 that has resulted in at least seven arrests; nearly $3,300 in fines, fees and court costs; and 25 days in jail.
Like Petree, the other plaintiffs, all from Pulaski County, live in poverty, according to the lawsuit. They are Charles Dade, 58, who has spent more than 100 days in jail and has been assessed about $4,000 in fines, costs and fees because of six bounced checks totaling $360 that he wrote in 2009; Nakita Rochelle Lewis, 36, of Pulaski County, who has been jailed for almost 80 days and still owes more than $4,892 since writing a series of bad checks in 2006; and Lee Andrew Robertson, 44, who wrote 11 bad checks ranging from $5 to $41 apiece in late 2009, which has resulted in seven arrests, several weeks in jail and a debt of more than $3,000.
The fifth plaintiff is Philip Axelroth, 68, a Sherwood resident who is a U.S. Air Force veteran and seeks relief on behalf of all taxpaying residents of Sherwood and Pulaski County.
Little Rock attorneys Bettina Brownstein and Reggie Koch are representing the plaintiffs along with the Morrison and Foerster firm in New York City and Hallie Ryan in Washington.
Information for this article was contributed by John Moritz of the Arkansas Democrat-Gazette.
A Section on 08/24/2016