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'Debtor's prison' lawsuit in Arkansas part of a national trend

by Linda Satter | December 28, 2016 at 5:45 a.m.

A federal lawsuit accusing a Sherwood judge of operating an unconstitutional "debtor's prison" that traps poor people in an endless cycle of fines, debt and jail time reflects a movement that is affecting courts across the country, including in Arkansas.

The movement has gained momentum in the past two or three years, fueled by lawsuits, public reports documenting suspected unconstitutional practices and a letter that the U.S. Department of Justice sent out in March to the administrators for all state courts across the nation. The efforts have led to lawsuit settlements, statewide directives from supreme courts and legislative changes.

In Arkansas, the Justice Department's concerns about ensuring due process and equal justice in state and local courts have led to new training for judges. It has also led to formation of a committee of circuit and district judges to review the way the state's courts impose financial sanctions, order incarceration for nonpayment of sanctions and determine a person's ability to pay.

Joanna Taylor, a circuit judge in Washington and Madison counties who is the chairman of the new, unnamed committee, which has 10 other members, said the committee hasn't held its first meeting yet. For now, she said, members are doing individual "scholarly work," reviewing materials and studies from other places.

The members are circuit judges from Lonoke, Little Rock, Pine Bluff and Berryville, and district judges from Searcy, Hamburg, Lonoke, Jonesboro and Texarkana. District judges oversee misdemeanors, traffic violations, civil cases, small-claims courts and hot-check cases. Together, the members comprise the state's first joint committee of the Arkansas Judicial Council and the Arkansas District Judges Council.

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Once the committee identifies specific concerns and ways to remedy them, Taylor said, the members are expected to relay those findings and recommendations to their respective organizations, "and go from there."

The expectation is that each organization will adopt at least some of the committee recommendations, she said. But since the idea to form the committee arose only two months ago, it's too early to know when the effort might lead to changes in court practices. Taylor said she is trying to arrange an initial meeting in January.

J.D. Gingerich, director of Arkansas' Administrative Office of the Courts, said the Justice Department's "Dear Colleague" letter, issued March 14, prompted his office to convene a meeting of the circuit judges who serve as administrators in each of the state's 28 judicial districts. He said that meeting led to the new focus, in twice-yearly judicial training sessions, on legal obligations concerning fines and fees.

Milas "Butch" Hale, the Sherwood District Court judge who presides over the hot-check division, is a defendant in the federal lawsuit, along with the city of Sherwood, Pulaski County and the judicial district's prosecuting attorney. Hale is among those who attended the fines- and fees-focused training this fall.

His attorney, Michael Mosley of the Arkansas Municipal League, credited the training for the positive changes attorneys have noticed in Hale's courtroom, although Mosley was careful to note that Hale has always followed the law.

"There are already laws in Arkansas that a judge is to consider somebody's ability to pay" before imposing a fine, or jail time if the fine can't be paid, Mosely said. "Our position is Judge Hale does that."

Mosley said Hale now requires any defendant who indicates that he can't pay a fine to fill out an affidavit of indigency, and if the defendant qualifies as indigent, Hale appoints an attorney to represent the person before considering punishment. The lawsuit complained that offenders were being fined and jailed without legal representation.

Reggie Koch of Little Rock is one of the plaintiffs' attorneys in the federal case, which is at a standstill while U.S. District Judge James Moody Jr. reviews motions to dismiss it. Koch often represents clients in the Sherwood court and said last week that he has noticed changes in the courtroom since the lawsuit was filed Aug. 23.

"I've been there several times, and I see a marked difference -- at least when I'm there," Koch said.

He added that conversations with other attorneys indicate that the positive changes aren't just for show.

"I've had other attorneys tell me, 'I've been to Sherwood, and it's a whole different world,'" he said.

Koch and attorney Bettina Brownstein, also of Little Rock, joined the American Civil Liberties Union of Arkansas and the national Lawyers Committee for Civil Rights Under the Law in filing the lawsuit on behalf of five Sherwood residents, four of whom say they have been abused by the court's practice and one who is complaining about misspent public funds.

The lawsuit alleges that for years, the court has violated the constitutional rights of Pulaski County's poorest residents through a "never-ending spiral of repetitive court proceedings and ever-increasing debt," which has the effect of criminalizing being poor.

While the lawsuit alleges that civil rights violations occur in local and state courts throughout Arkansas to varying degrees, the groups said the suit focuses on Sherwood because the court there "has become notorious throughout the community" for overzealous prosecutions of misdemeanors to enrich the court's or city's coffers.

"They're making money off the backs of poor people," Rita Sklar, executive director of the Arkansas ACLU office, said when the suit was filed. "It's as simple as that. The nonpoor people don't go to jail."

The lawsuit accuses the hot-check division of essentially operating an illegal "modern-day debtors' prison," referring to the arrest and jailing of poor people for failure to pay legal debts they are likely to never be able to afford -- a practice that the ACLU points out was formally abolished in the United States nearly two centuries ago.

Similarly, the Justice Department's March letter cited a growing problem of illegal revenue-raising practices in state and local courts that "trap people in cycles of poverty that can be nearly impossible to escape."

The nine-page letter was written by Vanita Gupta, principal deputy assistant attorney general in the department's Civil Rights Division, and Lisa Foster, director of the Office for Access to Justice. It said that in December 2015, the department convened a meeting of "diverse stakeholders" -- including judges, court administrators, prosecutors and defense attorneys -- to discuss the way state and local courts assess and enforce fines and fees.

"While the convening made plain that unlawful and harmful practices exist in certain jurisdictions throughout the country, it also highlighted a number of reform efforts underway by state leaders, judicial officers and advocates," the letter said.

Among the participants' recommendations for improving the situation, it said, was that the Justice Department "provide greater clarity to state and local courts regarding their legal obligations with respect to fines and fees and to share best practices."

To that end, the letter said it was aimed at addressing "some of the most common practices that run afoul of the United States Constitution and/or other federal laws," and to help court leaders ensure that the nation's courts operate fairly and lawfully, and consider alternative practices that protect the public while also protecting defendants. It identified and described at length seven "basic constitutional principles relevant to the enforcement of fines and fees" to which courts must adhere.

The letter noted that "in court systems receiving federal funds, these practices may also violate Title VI of Civil Rights Act of 1964 ... when they unnecessarily impose disparate harm on the basis of race or national origin."

"As court leaders, your guidance on these issues is critical," Gupta and Foster wrote to the administrators. "We urge you to review court rules and procedures within your jurisdiction to ensure that they comply with due process, equal protection, and sound public policy. We also encourage you to forward a copy of this letter to every judge in your jurisdiction; to provide appropriate training ...; and to develop resources, such as bench books, to assist judges in performing their duties lawfully and effectively."

One of the basic constitutional principles emphasized in the letter is that courts cannot incarcerate someone for nonpayment of fines or fees without first conducting an indigency determination and establishing that the failure to pay was "willful." Another key principle is that "courts must consider alternatives to incarceration" for people who can't pay fines and fees.

Since Hale attended the training put on by the administrative office in early fall, Mosley said, "No one has been jailed" in the hot-check court.

Attorney David Fuqua of Little Rock, who represents the county in the federal lawsuit, agreed that the Justice Department letter, which followed its investigation into the police and court system in Ferguson, Mo., "certainly gained a lot of attention in the courts community and got people talking."

The investigation, which led to the department issuing a scathing report on March 4, 2015, about Ferguson's justice system, was precipitated by a white officer's fatal shooting of an unarmed 18-year-old black man in the city and resulting violent protests. The Justice Department concluded that the court had moved away from being an independent branch of government to being a money-making venture.

"I think it's important that we do examine, from time to time, the underlying assumptions we have of our society," Fuqua said, "and I see this as an instance of when we're doing that."

At the same time, he said, "We sure don't want a society where there's no consequences for writing bad checks."

As courts increasingly offer alternative sentences, such as community service work, in lieu of fines or jail, Fuqua said, "It may be that most people tell the judge they can afford to pay a fine, to avoid a more unpleasant punishment."

While the lawsuit says the Sherwood court has prosecuted most hot-check violations in Pulaski County as a result of an informal agreement dating back to the mid-1970s, Fuqua pointed out that merchants can file a hot-check complaint with any court in the county, and it will be prosecuted there. He said Sherwood has simply become known to merchants for its efficient handling of hot checks, which is why most of them pursue collection efforts there.

The Sherwood lawsuit is one of several legal avenues the ACLU has pursued in the past two years in various states in an effort to eradicate modern-day debtors prisons.

On March 19, 2015, the ACLU settled a debtors-prison lawsuit against DeKalb County, Georgia, announcing that the agreement included "policy changes that could serve as a model in Georgia and across the country." Among the changes was the adoption of a "bench card" to guide judges in sentencing. The bench-card idea was included as a suggestion in the Justice Department's letter to the states earlier this year.

In March of this year, the ACLU settled a suit filed in October 2015 in Biloxi, Miss., that challenged a practice of arresting and jailing poor people without hearings or representation by counsel unless they paid their fines and fees immediately and in cash. The settlement agreement has several components, including the requirement that judges use bench cards.

On June 1, a judge approved the settlement of a class-action lawsuit the civil liberties group had filed in October 2015 against Benton County in central Washington. The lawsuit accused the county of regularly assessing fines, fees, court costs and restitution of more than $1,000 without considering a person's ability to pay, causing indigent people to be jailed or forced to perform manual labor on a work crew.

After the suit was filed, the county repealed the resolution authorizing jail or manual labor. The county agreed as part of the settlement to make several changes, including offering hearings for offenders to seek reductions in court-imposed financial obligations, and requiring public defenders and prosecutors to receive training on laws and procedures related to the collection of costs and penalties.

The ACLU has taken other measures besides filing lawsuits in its campaign against modern-day debtors prisons.

They include issuing a report in 2013 that led Ohio's Supreme Court to initiate changes aimed at educating local courts on how to protect indigent defendants' rights; filing a petition in 2014 to secure the release of an indigent man in New Hampshire; working with legislators in Colorado to pass legislation in 2014 banning the jailing of people for being unable to pay fines; issuing a report in Louisiana in August 2015 calling for reforms to end debtor practices; and in mid-December, issuing a report in Nebraska taking judges to task over for imposing bail, fines and fees on people who cannot afford to pay.

In the Arkansas case, Moody has stayed all discovery, or information-gathering, until he rules on motions to dismiss the suit that have been filed by all of the defendants.

Metro on 12/28/2016

Print Headline: 'Debtor's prison' lawsuit part of a national trend

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