Thursday, April 21, 2016

Buzzfeed kicking ass on TX muni courts as revenue generators

Kendall Taggart and Alex Campbell at Buzzfeed have done a great job over the last year or so covering Texas cities' and counties' use of Class C misdemeanor offenses as revenue generators that result in de facto debtors prisons when municipal and county jails are used to leverage payment from defendants of limited means.

New El Paso litigation
Yesterday they reported on new litigation filed by the Texas Civil Rights Project in El Paso. (See TCRP's complaint.) That article gave this description of the litigation:
The two plaintiffs in the suit, Carina Canaan and Levi Lane, were profiled in the BuzzFeed News investigation that found El Paso municipal court judges had routinely jailed people for unpaid traffic tickets. State law and two U.S. Supreme Court decisions bar courts from jailing people simply because they are too poor to pay their fines. Judges must first assess whether defendants have the money to pay, and if they do not, judges must offer them the chance to perform community service instead.

Canaan has never earned more than $8 an hour, according to the lawsuit. She started driving to school before she was old enough to have a license and quickly racked up $3,000 in tickets. She spent 10 days locked up to pay them off, while pregnant with her first child, but still owes additional fees that make it impossible to get her license.

Lane could not afford to keep his car insured and registered, but he said he had no choice but to keep driving: Public transportation shut down before his shift at a pet food factory ended. He racked up five tickets, totalling more than $3,400 in penalties, and was finally arrested. He could have avoided jail time if he had paid the fines on the spot, but he made only $8 an hour and had outstanding student loan debt. He was sentenced to three weeks in jail, during which he lost his job.

The lawsuit seeks an order prohibiting the city from jailing people who are unable to pay as well as compensation for people who have previously been jailed under those circumstances.

The city of El Paso did not immediately respond to a request for comment.

Though it is El Paso judges who impose the jail sentence, El Paso’s city council created the 25% down payment requirement. In an interview last year, presiding Judge Daniel Robledo told BuzzFeed News he did not support it. “I think that’s wrong,” he said. “In fact anybody that goes out there, anybody that’s in my court, to me there’s no such thing as 25%.
Judge Bull calls 'bull' on OCA collections program

Another recent article by this pair adumbrates a remarkable letter from San Antonio municipal court Judge John Bull to the Office of Court Administration.
Judge Bull was writing to protest a little-known state program that oversees the collection of court fines and fees for traffic tickets and other low-level offenses. The state takes about 30% of those fees, a cut that last year amounted to $236 million.

Bull’s letter says that the program puts municipal courts under “constant pressure to bring in ‘revenue.’”

Officials are “applying ‘best practices’ that might be relevant for banks or credit card companies,” he said, but that are “oppressive” in courtroom settings. In a memo to Bull’s court, a state collections specialist wrote that judges should devise “strict payment plans with the goal of collecting the largest amount of money in the shortest period of time, based on the defendant’s ability to pay.”

David Slayton, who heads the Texas Office of Court Administration, responded to a question about Bull’s letter by saying the state does not look to the courts as revenue sources. He pointed out that judges have discretion to waive fines for defendants who cannot afford them. “By the time it gets to the collections program,” Slayton said, “we should only be dealing with people who have the ability to pay.”
That last bit isn't entirely correct. In Dallas, for example, the city has advised municipal judges they may only reduce fines and fees for indigence after defendants have been sentenced, failed to pay, and have gone into default, not at the time the sentence is imposed. That guidance stems from Art. 45.0491 of the Code of Criminal Procedure, which specifies that courts "may waive payment of a fine or costs imposed on a defendant who defaults in payment" (emphasis added).

So the collections program is dealing with precisely defendants who cannot pay and have not yet been declared indigent. Until they default, judges don't have authority to declare them indigent, according to that reading of the law.

The Legislature could help things a lot by deleting the four above-italicized words from the statute, clarifying that muni judges can waive fines and fees for indigence at sentencing and don't have to wait until the indigent defendant has failed to pay. That's not the only legislative fix that needs to be done, but it's an important one.

And speaking of legislative changes, I asked Judge Edward Spillane from College Station what he thought about Judge Bull's letter and he replied to say Bull and other judges may soon get a chance to rewrite that statute:
I and many judges have read the letter and look forward along with Judge Bull and other interested parties to working with OCA on May 19th as part of an advisory committee to the Judicial Council to create legislation to ensure the Collection Improvement Plan takes into account that judges need to be free to exercise proper discretion by assessing alternative punishments like community service or waiver of fines for indigent defendants.
So that's a significant opportunity on the legislative horizon; there's a lot of momentum to reduce pressure from Class C fines and fees on low-income people, reduce the number of offenses they're penalized for, enhance judges' discretion to address noncompliance, etc.. The 85th Texas Legislature will be an interesting historical moment in which to be confronting these questions.

New rules extend payment plans, clarify requirement 'does not apply' to indigents 
Finally Taggart and Campbell recently published an item on new rules aimed at "designed to keep people out of jail when they can’t afford their traffic tickets." By their account:
Texas officials have proposed extended payment plans for people struggling to pay their fines and fees.
The Texas Judicial Council has also made it explicit that the state’s collection demands do not apply in cases where a defendant is found to be too poor to pay. ...

The new rules, which were approved by the judicial council last month, could take effect later this year. ...

Two municipal judges who spoke to BuzzFeed News said they felt the state Office of Court Administration’s previous rules put too much pressure on cities to collect fines and fees, creating burdensome requirements that made it harder for them to exercise their discretion and waive fees when it was in the interest of justice.

“We have judges for a reason — if we wanted this to be done by formula, we would get computers,” said one judge, who requested anonymity out of fear that state officials would retaliate by auditing his court.
Grits uploaded the new rules to my Google drive, for those interested.

Nice reporting by Taggart and Campbell; this is an important and little-covered beat and they're doing a good job with it.

1 comment:

philip sanders said...

A little different than what we read a month ago from one judge. Phil Sandersj