Un­der deal, court to back off jail­ing over hot checks

Arkansas Democrat-Gazette - - FRONT PAGE - LINDA SATTER

An agree­ment filed Tues­day in fed­eral court puts to rest a 2016 law­suit filed by two civil-rights groups that ac­cused Sher­wood and its hotcheck judge, Mi­las “Butch” Hale, of ef­fec­tively op­er­at­ing a “debtors’ prison” by sub­ject­ing poor mis­de­meanor of­fend­ers to “a never-end­ing spi­ral” of fees and fines.

The 20-page agree­ment was signed by an at­tor­ney rep­re­sent­ing the city and Hale, as well as by the five Hot Check Court de­fen­dants whose plight was taken up by the Amer­i­can Civil Lib­er­ties Union of Arkansas and the na­tional Lawyers’ Com­mit­tee for Civil Rights Un­der the Law.

U.S. District Judge James

Moody Jr., who had dis­missed the case in June on the grounds that its is­sues needed to be ad­dressed in state court, en­tered an order Tues­day af­ter­noon declar­ing a pend­ing re­in­state­ment re­quest “moot” and agree­ing to re­tain ju­ris­dic­tion over the case for two years, for the pur­pose of en­forc­ing the set­tle­ment.

Other par­ties orig­i­nally named as de­fen­dants — Pu­laski County and its pros­e­cut­ing at­tor­ney’s of­fice — were dis­missed from the case ear­lier.

Un­der the terms of the agree­ment, “Sher­wood’s ‘hot check’ court will no longer jail peo­ple who can’t af­ford to pay court fines and fees im­posed for bounc­ing a check,” the civil-rights groups said in a joint state­ment, adding, “Among sev­eral broad re­forms to Sher­wood’s prac­tices, the set­tle­ment re­quires the court to eval­u­ate each de­fen­dant’s abil­ity to pay be­fore de­ter­min­ing the per­son’s sen­tence.”

At­tor­ney Michael Mosley, who rep­re­sented Hale and the city through the Arkansas Mu­nic­i­pal League, said Tues­day that some at­tor­neys for the plain­tiffs ap­proached him af­ter Moody dis­missed the case but while the re­in­state­ment re­quest was pend­ing, seek­ing a way to re­solve the is­sues out­side of court. He said the process went on for months, with him re­ject­ing sev­eral of the plain­tiffs’ early pro­pos­als, but ended with the city agree­ing to re­duce to writ­ing “the ex­ist­ing prac­tices of the Court.”

Mosley said many of the prac­tices “go way back,” but

con­ceded that “some are more re­cent, about a year old,” and were put into place af­ter Hale at­tended a train­ing pro­gram of­fered last fall by the state Ad­min­is­tra­tive Of­fice of Courts. The courts em­pha­sized ju­di­cial train­ing on debt-col­lec­tion prac­tices to ad­dress con­cerns raised by the U.S. Depart­ment of Jus­tice in a let­ter sent in March 2016 to ad­min­is­tra­tors of state and lo­cal courts across the coun­try.

“Any prac­tice that the court re­fined a year ago was the di­rect re­sult of AOC train­ing,” Mosley said. “No money or at­tor­neys’ fees are be­ing paid as part of this set­tle­ment.”

He em­pha­sized, “As we’ve al­ways main­tained, and this agree­ment re­flects, the court’s prac­tices are con­sti­tu­tional and Judge Hale has al­ways considered a per­son’s abil­ity to pay in de­ter­min­ing a sen­tence af­ter a find­ing of guilt.”

Lit­tle Rock at­tor­ney Bettina Brown­stein, who rep­re­sented the ACLU of Arkansas, said Tues­day, “Well, he’s been do­ing it be­fore the set­tle­ment, but [the new prac­tices] were in re­sponse to the law­suit.”

The law­suit was filed Aug. 23, 2016, and sought class-ac­tion sta­tus to al­low the five plain­tiffs to rep­re­sent a class of thou­sands — though it never ad­vanced to the point that the class-ac­tion re­quest was considered.

The al­le­ga­tions mir­rored those in other law­suits, and other ef­forts, the ACLU has pur­sued in sev­eral states

to ad­dress what it and the Jus­tice Depart­ment saw as grow­ing il­le­gal rev­enue-rais­ing prac­tices in the na­tion’s low-level courts that the depart­ment said “trap peo­ple in cy­cles of poverty that can be nearly im­pos­si­ble to escape.”

When the law­suit was filed, the ACLU said that while it fo­cused on Sher­wood, for its “no­to­ri­ous” meth­ods of pros­e­cut­ing hotcheck vi­o­la­tions, “lo­cal courts and mu­nic­i­pal­i­ties through­out Arkansas have for years used the threat and re­al­ity of in­car­cer­a­tion” to “slowly and in­sid­i­ously” erode the rights of cit­i­zens.

Asked Thurs­day whether the set­tle­ment agree­ment might play a role in re­solv­ing con­sti­tu­tional con­cerns in other mu­nic­i­pal courts in Arkansas, Brown­stein said, “We think that this will lead to that. … We ex­pect it to have a larger im­pact. We’re not stop­ping here.”

Brown­stein said the main is­sue in the case is that “you can­not put peo­ple in jail be­cause they can­not pay the court fees and fines. That’s an un­der­ly­ing con­sti­tu­tional prin­ci­pal.”

The law­suit in­cluded ex­am­ples from the plain­tiffs of ways in which small fines mor­phed into thou­sands of dol­lars of debt and in­car­cer­a­tion.

It said one of the plain­tiffs, Nikki Rachelle Pe­tree of White County, wrote a sin­gle bad check for $28.93 in 2011 that, by the time the suit was filed, had re­sulted in her be­ing ar­rested at least seven times, pay­ing nearly $3,300 in fines, fees and court costs, and spend­ing 25 days in jail. The suit al­leged that the lead plain­tiff, Charles Dade, spent more than 100 days in jail and

was as­sessed about $4,000 in fines, fees and court costs be­cause of six bounced checks to­tal­ing $360 that he wrote in 2009.

Brown­stein said the set­tle­ment agree­ment won’t nec­es­sar­ily re­sult in each plain­tiff’s out­stand­ing fines and fees be­ing considered “paid up.”

Holly Dick­son, an at­tor­ney for the ACLU of Arkansas, was asked Tues­day if the set­tle­ment agree­ment might be­come a model for other mu­nic­i­pal-level courts.

“I wouldn’t say that these prac­tices are model prac­tices,” she said. “but, boy, if you did this, you would re­ally be re­spect­ing the peo­ple’s con­sti­tu­tional rights. I think these are base­line re­forms that have been put into place that ev­ery court should have, to en­sure that the de­fen­dants’ con­sti­tu­tional rights are re­spected and we’re not pun­ish­ing peo­ple be­cause they are un­able to pay fees, fines and costs.”

Rita Sk­lar, ex­ec­u­tive di­rec­tor of the ACLU of Arkansas, said, “No one should be thrown in jail for bounc­ing a check, but that’s ex­actly what has been hap­pen­ing for years to our clients and hun­dreds of oth­ers. This res­o­lu­tion is a tes­ta­ment to their courage and per­sis­tence in seek­ing jus­tice.”

As part of the set­tle­ment, the court has agreed to stop jail­ing de­fen­dants who can’t af­ford to pay court debts; halt the re­vo­ca­tion of driver’s licenses for fail­ure to pay court debts; con­duct an in­di­vid­u­al­ized eval­u­a­tion at sen­tenc­ing of a de­fen­dant’s abil­ity to pay; clearly ad­vise de­fen­dants of their right to coun­sel be­fore the en­try of any plea and their rights if they are un­able to pay their

court debt; give de­fen­dants the op­tion of re­ceiv­ing a sen­tence of com­mu­nity ser­vice in­stead of a fine; pro­vide de­fen­dants who fall be­hind in mak­ing pay­ments an op­por­tu­nity to ad­just their pay­ment sched­ule or waive re­main­ing pay­ments, as well as an op­por­tu­nity to be re-sen­tenced to com­mu­nity ser­vice; and main­tain a pub­licly ac­ces­si­ble video record­ing of hot-check court pro­ceed­ings.

Mosley said that among the prac­tices Hale “re­fined” on the ad­vice of the Ad­min­is­tra­tive Of­fice was to stop hold­ing re­view hear­ings for peo­ple on pay­ment plans.

The agree­ment states that if a per­son on a pay­ment plan fails to make two con­sec­u­tive monthly pay­ments, or a per­son on a com­mu­nity ser­vice plan fails to per­form the re­quired hours for two con­sec­u­tive months, and fails to re­spond to con­tact at­tempts from court em­ploy­ees, the court may send a writ­ten no­tice, with an Order to Show Cause, di­rect­ing the per­son to ap­pear at a hear­ing to ex­plain the fail­ure to com­ply.

How­ever, it also states, “The Order to Show Cause is not an ar­rest war­rant, and no per­son will be sub­ject to ar­rest or de­ten­tion at the time an Order to Show Cause is served.”

The law­suit al­leged that Hale is­sued an ar­rest war­rant each time a de­fen­dant failed to make a pay­ment. It al­leged that Sher­wood po­lice tracked peo­ple who owed the court money to their homes and threat­ened to ar­rest them un­less they could make a pay­ment on the spot. Those who couldn’t were taken to jail, the suit al­leged.

In the law­suit, the plain­tiffs also com­plained that their court pro­ceed­ings were closed to the pub­lic, though ob­servers said that prac­tice changed shortly af­ter the law­suit was filed. The court’s cur­rent prac­tices, as out­lined in the set­tle­ment, stip­u­late that “mem­bers of the pub­lic are per­mit­ted … to en­ter and ob­serve the Court’s pro­ceed­ings whether or not they have a hear­ing sched­uled be­fore the Court.”

Den­nis Parker, di­rec­tor of the ACLU’s Racial Jus­tice Pro­gram, said in a pre­pared state­ment: “We plan to con­tinue work­ing with Sher­wood and other ju­ris­dic­tions to en­sure that all de­fen­dants are treated fairly, re­gard­less of in­come. The crim­i­nal­iza­tion of poverty is a na­tion­wide prob­lem, with the courts play­ing a ma­jor role. We will con­tinue to chal­lenge un­just court prac­tices that harm the poor.”

Kris­ten Clarke, pres­i­dent and ex­ec­u­tive di­rec­tor of the Lawyers’ Com­mit­tee, added, “Our clients brought this law­suit to chal­lenge the un­con­sti­tu­tional in­car­cer­a­tion of poor de­fen­dants — a dis­pro­por­tion­ate num­ber of whom are African Amer­i­can or mi­nor­ity — who can­not af­ford to pay court-im­posed fines, fees and costs.

“This set­tle­ment will help dis­man­tle the struc­tures that have fu­eled and sup­ported in­di­gent in­car­cer­a­tion in the City of Sher­wood, Arkansas, for far too long. We will con­tinue our work to fight debtors’ pris­ons and end mass in­car­cer­a­tion across the coun­try.”

The ACLU and Lawyers’ Com­mit­tee pur­sued the case with as­sis­tance from not only Brown­stein but also at­tor­ney Reg­gie Koch and the law firm of Mor­ri­son Fo­er­ster.

Hale

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