Settlement reached in Sherwood hot check case, the 'debtor's prison' complaint | Arkansas Blog

Tuesday, November 14, 2017

Settlement reached in Sherwood hot check case, the 'debtor's prison' complaint

Posted By on Tue, Nov 14, 2017 at 10:00 AM

Judge Milas Hale III on the bench in Sherwood. - BRIAN CHILSON
  • Brian Chilson
  • Judge Milas Hale III on the bench in Sherwood.

A settlement has been reached in the lawsuit over hot check practices in the Pulaski County district court in Sherwood, a long-running practice that plaintiffs in the lawsuit likened to debtors' prison. A sweeping list of new procedures is aimed at preventing the cycle of fines and repeat jailings cited in the lawsuit.

Here's the settlement, filed this morning.

A federal judge dismissed the lawsuit in June on the ground that a federal court couldn't intervene because some issues were being contested in state court. The ACLU said at the time it would consider further action. That led to ongoing talks with the defendants, including Judge Milas Hale IIII and Prosecutor Larry Jegley, who takes county hot check prosections to the court in Sherwood. Parties began filing motions to alter Judge Jay Moody's decision within a couple of weeks after his dismissal.

The agreement filed this morning stipulated to dismissal of the suit under the terms outlined. It must be approved by Judge Moody.

The settlement reiterates that plaintiffs were jailed for inability to pay fines and were not provided counsel. The defendants still deny liability. But they agreed to a series of practices in the future intended to cure the objections, some of which have already been put into effect. They include an evaluation of a defendant's ability to pay and the provision of a time payment plan for those without means to pay in full. Defendants also may be given the opportunity for community service to work off fines.

A person receiving government assistance or mental health treatment or who has poverty level income will be presumed unable to pay and receive a waiver from legal financial obligations.

Defendants also are to be informed of a right to counsel and the availability of a public defender.

People who fail to make payment may be issued a show cause order to appear in court, but this is not to be treated as an arrest warrant. A lawyer may be appointed for someone who can't afford one. Jailing can be ordered only on a finding of willful failure to pay, but the court will no longer order revocation of driver licenses in such cases.

Failure-to-appear charges may only be filed on the original hot check charge, not on subsequent failures to appear. No fines may be assessed for contempt of court except when it is willful, not a product of an inability to pay.

Further legal action is waived on all cases pending before Sept. 30, 2016 where restitution on the hot check charge has been made. No further penalties will be enforced. Defendants had described a never-ending series of charges for failure to appear on original hot check charges, even when a merchant had received full payment. The judge will also consider ability to pay on other open cases.

The agreement specifies that the court will be open and sessions will be recorded on video. There had been complaints about people being barred from court sessions.

The settlement provides a two-year period of federal court supervision to mediate any disputes that might arise. It sets out a process for handling disputes.

The plaintiffs agree to give up any claims for damages against any defendants or related parties.

The lawsuit was the work of the Lawyers Committee for Civil Rights Under the Law, one of several actions nationwide aimed at ending punitive fee schemes in local courtgs. The Arkansas ACLU also joined the case. Local attorneys included Bettina Brownstein and Reggie Koch.

The settlement includes documents that will be provided to defendants in hot check court.

The Lawyers Committee issued a news release in the afternoon on the settlement.

“Too many poor people are detained inside jails and prisons across our country merely because of their inability to pay fines and fees attached to low-level, nonviolent offenses,” said Kristen Clarke, president and executive director of the Lawyers’ Committee for Civil Rights Under Law. “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.”

“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,” said Rita Sklar, executive director of the ACLU of Arkansas. “This resolution is a testament to their courage and persistence in seeking justice.”

Dennis Parker, Director of the ACLU’s Racial Justice Program, said: “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.”

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