Two local judges' efforts to reduce costs, fees and fines that they say have trapped misdemeanor offenders in Craighead County in an endless cycle of debt are "fully justified as a matter of law and policy" in discontinuing the county's relationship with a Memphis for-profit probation company, a national organization contends.
The Lawyers' Committee for Civil Rights Under Law made the assertion in a friend-of-the-court brief it filed late last month in a federal lawsuit through which the company hopes to recover fees it assessed on probationers before the county severed ties with the company.
The company, called The Justice Network, also wants a federal judge to declare that the actions of district judges David Bowling and Tommy Fowler violate federal and state laws governing contracts and property rights, to impose an injunction to halt the judges' "Amnesty Program," and to award punitive damages.
The Justice Network's lawsuit claims it provided probation services to criminal defendants in the county for more than 20 years, with clients agreeing to pay fees for services such as drug screenings and classes. The suit contends that in forgiving fees owed by probationers to the company, the judges deprived it of already-earned funds.
But in the brief filed Oct. 24, the Lawyers' Committee described the company's actions as a "regime" that caused widespread harm and "systematically perpetuated fundamentally unfair and unequal treatment in violation of the 14th Amendment by jailing people without any regard for their ability to pay court-imposed debt." The committee contends the company "deprived probationers of due process by preying on poor and disproportionately minority populations."
The committee contends that from 1997 until February, The Justice Network has collected "upwards of a half million dollars a year off the backs of thousands of largely poor and disproportionately minority Arkansans in Craighead County alone, and for those who simply could not afford to pay, it worked with the court system to impose additional fines and to ensure their imprisonment."
The committee argued that judges Bowling and Fowler recognized the problems perpetuated by the company and merely sought to remedy the situation.
The committee attached to its brief several articles in the Jonesboro Sun dating to 2012 showing growing concerns in the community with the probation company and indicating that Bowling and Fowler campaigned heavily on promises they would end outsourcing of probation services.
The Sun has reported that the judges hold occasional amnesty sessions in which they allow people with outstanding warrants for failure to appear, nonpayment of fines or other contempt charges to appear and make arrangements to pay outstanding fines and avoid arrest.
The newspaper reported Feb. 11 that in four amnesty sessions since Jan. 20, 563 people had appeared before one of the judges, eliminating 2,886 backlogged warrants. The paper reported that the judges said many of the people who went before them were facing weekly or monthly payment plans that forced them to choose between providing for their families or paying their fines.
At the same time, Fowler was quoted as saying: "Don't mistake kindness for weakness. That's not weakness. We're still enforcing the law."
The committee's amicus brief chastised The Justice Network's assertion that the district judges stopped using the company's "services" and began to individually consider the propriety of debts imposed in connection with those "services" as a means of "punishing" the company.
"Even a quick perusal of the local paper reveals a years' long history of harm in Craighead County under the prior status quo, indifferently imposed in pursuit of company profit," the brief states.
It notes that when Bowling and Fowler took office, they found about 50,000 outstanding warrants from the misdemeanor court for more than 8,000 people.
"That is almost one warrant for every two residents of Craighead County. ... That is an average of more than five warrants for each affected individual," the brief states.
The filing also describes "shocking sums" that the judges found owed as a result of misdemeanor convictions, and reports of "widespread hopelessness" on the part of the company's "clients."
It cited a Sun article about a woman who was unable to complete court-ordered public service work by a deadline because she had a job, so a contempt of court warrant was issued -- which resulted in her being arrested and, as a result, losing her job and her children, who were placed in foster care.
While the federal case over misdemeanor fines is pending in the Jonesboro division of federal court, and is tentatively scheduled for a trial in 2018, the committee and the American Civil Liberties Union of Arkansas are also plaintiffs in a federal lawsuit filed in 2016 in the Little Rock division to challenge procedures in Sherwood's Hot Check Court.
U.S. District Judge James Moody Jr. threw out the case June 8, saying it involves unresolved state-court issues. But plaintiffs have asked Moody to reconsider, and Moody hasn't yet ruled on the request.
Moody is also the judge in The Justice Network's lawsuit, which was originally randomly assigned to U.S. District Judge D. Price Marshall Jr. but was transferred to Moody after Marshall, who is from Jonesboro, recused because Fowler is on his recusal list.
In a statement issued June 9, the Lawyers' Committee responded to Moody's dismissal of the Sherwood case by saying: "This case raises serious allegations that hundreds or thousands of individuals, including the [four] plaintiffs, are arrested, jailed and subject to unconstitutional court collection practices spanning the better part of two decades. The Lawyers' Committee ... respectfully disagrees with the ... dismissal of this case on procedural grounds. We will carefully consider our next steps while continuing to fight for equal access to justice in Sherwood and in courts across Arkansas."
In accepting the recommendation of U.S. Magistrate Judge Joe Volpe and dismissing the case, Moody agreed with the defendants -- Sherwood District Judge Milas "Butch" Hale, the city of Sherwood, the Pulaski County prosecuting attorney's office and the county itself. They argued the plaintiffs' cases constituted ongoing state proceedings, requiring the application of the Younger abstention doctrine, named after a 1971 U.S. Supreme Court case. It requires federal judges to abstain from exercising jurisdiction over any case in which there is an ongoing state proceeding that implicates important state interests and where there is an opportunity to raise any relevant federal questions in the state proceeding.
Attorneys for the plaintiffs, however, say the four defendants who were penalized by Hale for hot-check charges were finished with their state-court proceedings when the lawsuit was filed Aug. 23, 2016, even if they still owe fines.
The attorneys argued that the Younger doctrine doesn't apply "where there is no pending criminal prosecution, and plaintiffs simply owe post-conviction debt."
The final deadlines for filing written arguments on the pending request for reinstatement was Oct. 27, indicating that a ruling may be imminent.
Metro on 11/05/2017