Tuesday, August 23, 2016

ACLU says hot check court in Sherwood operates as illegal debtors' prison

Posted By on Tue, Aug 23, 2016 at 10:18 AM

JUDGE MILAS 'BUTCH' HALE III: His operation of hot check court in Sherwood attacked in ACLU lawsuit.
  • JUDGE MILAS 'BUTCH' HALE III: His operation of hot check court in Sherwood attacked in ACLU lawsuit.
The ACLU lawsuit over unconstitutional jailing of people for unpaid fines is over practices in the hot check court operated in Sherwood.

The ACLU of Arkansas, the Lawyers' Committee for Civil Rights Under Low and the law firm of Morrison and Foerster, an international law firm with 16 offices around the world, today filed in federal court a class action civil rights lawsuit against the city of Sherwood, Pulaski County and Judge Milas Hale III, who presides over the court in Sherwood where county hot check cases have long been consolidated.

The plaintiffs include four people who were jailed "for their inability to pay court fines and fees in violation of longstanding law forbidding the incarceration of people for their failure to pay debts." Said the ACLU release:

The resurgence of debtors prisons across our country has entrapped poor people, too many of whom are African American or minority, in a cycle of escalating debt and unnecessary incarceration,” said Kristen Clarke, president andexecutive director of the Lawyers’ Committee for Civil Rights Under Law. “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 debtors’ prison 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.

Arkansas Executive Director Rita Sklar added:

When the criminal justice system serves as unscrupulous debt collectors for the public and private sector, without regard to due process, the government is not only violating people’s rights, it is facilitating the never-ending cycle of poverty: threatening the poor with incarceration for failure to pay bills they can’t pay, keeping them from jobs that may help them pay their bills, and stacking up fines that dig the poor into an even deeper hole. We need open court proceedings and public accountability, fair, rational laws that take into account defendant’s ability to pay and prohibit incarceration for failure to pay, and we need to stop raising money on the backs of the poor.

The lawsuit contends people facing misdemeanor hot check charges must waive a right to counsel and that court proceedings are closed to the public. The defendants then are assessed fines, fees and costs on misdemeanor hot check convictions "with complete disregard for the person's ability to pay." An arrest warrant is issued each time a person fails to make a payment and that in turn is an opportunity for more fines and fees. Sherwood police enforce the collections by threatening arrest of people unless they pay a small amount — $50 to $100 — to get a court date instead of being taken into custody.

Philip Axelroth of Sherwood, 68, an Air Force veteran, is a plaintiff for purposes of making a claim of "illegal exaction" under Arkansas law — or misuse of public tax funds by maintaining an unconstitutional debtors' prison scheme, including operation of jails to illegally hold people for debts..

The ACLU quoted him:

“The unconscionable things happening in the Sherwood Hot Check Court have no place in our community,” said Axelroth. “We stand with our neighbors in saying these predatory practices must stop.”
Here's the lawsuit. It says:

Through a labyrinthine and lucrative system, a single check for $15 returned for insufficient funds can be leveraged into many thousands of dollars in court costs, fines, and fees owed to Sherwood and Pulaski County.
click to enlarge CHARLES DADE: Seven years after $360 worth of hot checks, he's in jail today for unpaid court costs. Jail records say he has been there for 33 days on this stint on a Sherwood misdemeanor.
  • CHARLES DADE: Seven years after $360 worth of hot checks, he's in jail today for unpaid court costs. Jail records say he has been there for 33 days on this stint on a Sherwood misdemeanor.
One example among the plaintiffs:

Charles Dade is a 58-year-old black man. He has resided in Pulaski County since 2005. In late 2008 and 2009, Mr. Dade wrote six checks that were returned for insufficient funds totaling about $360. Over the last seven years, Mr. Dade has been arrested many times by Sherwood as a result of these returned checks; has been ordered by the Sherwood District Cour to pay about $4000 in court costs, fines, and fees he could not afford; and has been jailed for well over 100 days. Mr. Dade is currently incarcerated in the Pulaski County Jail because he was unable to pay his monetary debt for court costs, fines, and fees imposed by the Hot Check Division of the Sherwood District Court. Despite Mr. Dade's inability to pay, he still faces hundreds of dollars in unpaid costs, fines, and fees and the likelihood that he will be incarcerated again in the future.
Another:

 Nikki Rachelle Petree is a 40-year-old white woman who resides in White County, Arkansas. In September 2011, Ms. Petree wrote a single check for $28.93 that was
returned for insufficient funds. Over the next six years, Ms. Petree was arrested at least seven times as a result of this returned check, paid Sherwood at least $640 she could not afford to pay to cover court costs, fines, and fees, and has been jailed for over 25 days. Ms. Petree is currently incarcerated in the Pulaski County Jail because she was unable to pay $2656.93 in court costs, fines, and fees imposed by the Hot Check Division of the Sherwood District Court. Despite Ms. Petree· s inability to pay, she still faces thousands of dollars in unpaid costs, fines, and fees and the likelihood that she will be incarcerated again in the future.
The suit details how the public is excluded from Thursday court sessions and how defendants are effectively denied counsel. No full records are kept of proceedings.

Because the only persons allowed in the courtroom are the judge, court clerks, prosecutors, court bailiffs, a probation officer, and a public defense attorney who does not actually represent the hot check defendants, the hot check defendants do not have a single advocate to whom to turn to understand and assert their rights.
The lack of counsel perpetuates the scheme on unwitting defendants, the suit says.

The suit details the assembly line nature of the process and the absence of much participation by lawyers, either the prosecutor or a nominal Sherwood-hired public defender.

Upon entering a conviction for a hot check misdemeanor, Judge Hale typically sentences the individual to probation and to pay the following amounts: restitution in at least the amount of the unpaid check, 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. Thus the court costs, fines, and fees associated with a hot check conviction, regardless of the amount of the unpaid check, exceed $400.
Those who can't pay are put on a "payment plan" without regard to their ability to pay, though state law requires this, and scheduled for future hearings. Despite state law on fine collection procedures, the suit said, defendants:

... have put in place a collection scheme that is designed to maximize the amount of court costs, fines, and fees imposed on individuals and that uses the threat and reality of incarceration to coerce individuals to pay these amounts, notwithstanding the inability
to do so.

Following a hot check conviction, Defendants treat each review hearing based on this prior conviction as an opportunity to open a new, separate, stand-alone criminal case, thereby purportedly authorizing the court to impose new and duplicative court costs, fines, and fees on the same hot check defendant.
Les Miserables, anyone?

The suit details how the hot check court operates under auspices of the city of Sherwood and aggressively markets itself to businesses in the county. This business produces more than $2 million a year for the city of Sherwood, an amount "leveraged" by turning a single hot check into multiple cases for failure to meet payment plans.

I'm seeking comments from Sherwood, Pulaski County and Prosecuting Attorney Larry Jegley.

UPDATE:

* SHERWOOD MAYOR VIRGINIA YOUNG: "No comment."

* PROSECUTOR LARRY JEGLEY: Said he hadn't seen the suit so couldn't comment. Also said he was in an all-day meeting. I sent him a copy.

* COUNTY JUDGE BARRY HYDE: "The county attorney hasn't seen it yet. We haven't been served. So a comment depends on the complaint." I sent him a copy, too.

* JUDGE MILAS HALE: He told AP in an e-mail:
We do not run a so called 'debtor's prison' in Sherwood. If a defendant pleads guilty, or is found guilty, of writing a hot check we set up a payment plan. It is only after the third or fourth time that they fail to comply with a court order that we incarcerate."
Hale didn't talk about the allegations of closed court and defendants without attorneys or the rights waiver forms they are "encouraged" to sign. A longer explanation is needed too for continued jailing seven years after an offense and thousands of dollars in payments for small hot checks. His day in court will come.

PS: Lawyers are coming out of the woodwork to talk about how this similar practice is followed in many courts in Arkansas. As one explains: 

It is not just Sherwood. People are incarcerated for failing to comply with the statute requiring that they provide a schedule of assets to the court after a civil monetary judgment is entered. they cannot be incarcerated for the monetary debt but can for failing to comply with the requirement to provide a schedule of assets.

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