Thursday, August 25, 2016

Sherwood isn't the only place using the poor to finance government

Posted By on Thu, Aug 25, 2016 at 7:21 AM

click to enlarge OPEN FOR BUSINESS: Sherwood trumpets its hot check court, a big moneymaker for the city that throws some poor people who write small bounced checks into a never-ending cycle of court fees.
  • OPEN FOR BUSINESS: Sherwood trumpets its hot check court, a big moneymaker for the city that throws some poor people who write small bounced checks into a never-ending cycle of court fees.

The lawsuit this week challenging Sherwood's hot check court — a $2 million annual moneymaker for the city of Sherwood thanks to a "Les Miserables"-style scheme of perpetual dunning of people who bounce small checks — is part of a national trend.

Think Progress writes here that 50 states have laws that waive court filing fees for indigents. In practice (see Sherwood), they often don't get to assert that right, in part because they lack legal representation. The procedure in Sherwood includes coercing  defendants into waiving representation in a court from which the public is excluded, in part because the crowd that appears every Thursday morning to face the Sherwood fee reaping machine is so large.

It's a national shakedown, Think Progress writes. Why? Money.

“The court system is pretty strapped financially, so any money they can get they’d like to keep,” he said. “It’s an understandable pressure, but also one that ends up hurting the people who need those waivers the most.”

This has become a larger and larger problem as many states have adopted austerity measures, cutting back on government money, either in the face of the recent recession or anti-tax sentiments. Court systems have felt the knife.

As has been uncovered in places like Ferguson, MO, many jurisdictions have ramped up fines and fees — often levied on poor residents — to keep courts afloat. St. Louis County, home to Ferguson, has drowned its poorest residents in tickets for minor traffic violations, which have generated tens of millions of dollars in revenue. Court filing fees are the other side of the same coin.

In the days since the Sherwood suit was filed by the ACLU and others, I've heard from several lawyers who have long looked askance at the fee collection machine in Sherwood presided over by Judge Milas "Butch" Hale III. But taking on the research-heavy effort necessary to wage a battle against the system was something that it finally took an international law firm with significant resources to take on.

Observed one local defense attorney about Sherwood:

All criminal defense lawyers know about this, and don't think this hasn't crossed all our minds at one time or another. We've all badmouthed this fiasco. I've negotiated a couple way down; otherwise, I'm not there. Few of us handle hot check prosecutions except to appeal it to circuit court. After all, the defendant is without funds or the check would have cleared, so how can they pay a private lawyer? And it is an assembly line: the line into the courtroom moves slow because people are lined up on the Kiehl St. side of the courtroom to come to the bench.

But, what about needing reasonable bail from Judge Hale? Or hoping that he'll acquit your client in your next trial? One can't burn that bridge because it will harm other clients because Hale's judgeship becomes full time come January 1st and his duties will increase, including handling some matters within the Circuit Court's jurisdiction. Therefore, somebody who doesn't handle criminal cases had to do it.

Actually, I'd like to see how much money Sherwood has scored off the hot check court since it's inception. [$12 million in five years, the ACLU suit said.] Every merchant who goes there to me is an accomplice because they know what goes on. They wouldn't think so because they get their money someday somehow, but its extortionate and a racket.
A lawyer on the other side of the fence responds:

I’m familiar with the admonition to not pick fights with someone who buys ink by the barrel, but perhaps a friendly counterpoint from a local lawyer might be useful:

1. Hot check defendants, regardless of their station in life, have committed the crime of theft by failing to pay for goods or services they received.

2. It’s a good thing that hot check offenses go to a diversionary sort of program (like in Sherwood) with the goal of restitution, rather than being sent to a traditional criminal court docket.

3. In my experiences in Sherwood District court (which are many, but admittedly not on the hot-check docket), the court staff and judge have been exceptionally courteous and patient with everyone in the courtroom, including pro se defendants.

4. I haven’t studied the particular examples raised in the ACLU lawsuit, but I know that all judges are sensitive to the fact that jails are overcrowded, and incarceration is usually the worst solution to a minor offense. But all judges are also sensitive to enforcing their court’s orders. So when a person has a reasonable payment plan, and fails to honor it over and over again, what choice does the court have? Just shrug their shoulders and let the scofflaw off the hook?

5. I doubt Sherwood is collecting any fees, court costs, or penalties that are not specifically authorized by statute. So isn’t the General Assembly really driving this?

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