Under deal, court to back off jailing over hot checks
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.