Sunday, August 20, 2017

Emily Gerrick: Chipping Away at Debtors Prison Policies

On the latest Reasonably Suspicious podcast, I interviewed Emily Gerrick, a staff attorney with the Texas Fair Defense Project specializing in policies surrounding people jailed for traffic-ticket debt. We only used a 5-minute segment for the podcast, so here's our full conversation for those interested, ranging from recently passed reform bills, jailing drivers for failure to pay tickets, the ignominious Driver Responsibility surcharge, and what local municipal court judges and Justices of the Peace can do to minimize debtors prison practices under current law.

Listen to the full interview here or read a transcript below the jump:

SEE ALSO: A report from the Fair Defense Project and Texas Appleseed on debtors prison issues, a summary of reform legislation from the Texas Municipal Courts Education Center, and comments about Emily's interview from Edward Spillane, presiding judge over the College Station municipal courts. RELATED: Check out Grits' call for a "Jubilee" on criminal-justice debt, an analysis of opposition to this year's reform legislation, and an account of the dramatic reversal that allowed the bill to pass in the Texas House.

Transcript: Interview between Just Liberty Policy Director Scott Henson and Emily Gerrick, staff attorney for the Texas Fair Defense Project, conducted August 3, 2017.

Scott Henson with Emily Gerrick
Scott Henson: All right, I'm here today with Emily Gerrick, a staff attorney with the Texas Fair Defense Project. How are you doing Emily?

Emily Gerrick: I'm good, thanks. How are you?

Scott Henson: I'm well. Thank you so much for joining us. This legislature session, the legislature passed House Bill 351 and Senate Bill 1913, which was the big debtors' prison legislation and the San Antonio Express news editorialized afterwards that we had ended the debtors' prison problem. That it was over. We've ended debtors' prisons in Texas. Is that what happened?

Emily Gerrick: I don't want to say that, these bills are really important. They've done a lot, but they certainly did not end debtors' prisons in Texas. There's still a lot of work to do, and while we're very, very excited that these passed, there are lots of things that have been left out and didn't make it into the final version of the bill.

Scott Henson: I know, that was probably an unfair setting on my part, but I was very surprised to see that headline. Now tell us what the bill did do, because it did do some very important things.

Emily Gerrick: Yes, I think the bill will make it a lot easier to take care of their tickets. It'll make it easier to clear their warrants, it'll give them more access to alternatives. Community service, it'll expand the community service options, it gives more credit for community service, and if people go to jail they get a little bit more credit. It used to be $50 per night in jail, or $50 per eight hours doing community service, and now it's $100 as the minimum. Most places were already giving more than $50, but that will certainly help a lot of people, and it will also do things like you have to have a hearing before you can issue an arrest warrant for somebody.

I think that it will help a lot of people who are struggling with their tickets, but it's not going to stop people from going to jail. Even for long periods of time right now we're seeing people go to jail for the longest I think I've seen, and this is not unusual, is 45 days. Those are just what I know of, and I don't think that is necessarily going to stop unless this bill sort of gives more of a culture change, but it doesn't do it on it's own. It doesn't bar people from going to jail just 'cause they can't pay for something.

Scott Henson: Gotcha. Now following up on that, in the legislative process, they've been fighting now for years over the driver responsibility program, and these driver responsibility surcharges have gotten a tremendous amount of attention. There was a bill that you and I could probably talk about for an hour or so this session that was trying to end it, but the pay-for was so bad that we really needed to just not go there and wait and find a different way to fix the program. That's where this sort of, "Oh, your drivers license is suspended and it's causing all these problems," that's where this debate has been centered around. But that's not the only program under which people's drivers licenses are suspended, and in fact the other one is more integral to the whole core process in many ways. Why don't you talk to us about this second program?

Emily Gerrick: Yeah, that's exactly right. The DRP will suspend your license if you can't pay a surcharge, and a lot of people know about that program, but there's also a program sometimes referred to as the Failure to Appear/Failure to Pay Program, sometimes referred to as the Omnibase program because there's a vendor that's called Omnibase that runs it. What that is if you don't pay your traffic tickets, then counties will send a notice to Omnibase and Omnibase will put a hold on your license so you can't get your license and you can't renew your license until you pay off those tickets. We see so many people who have fallen into that trap where they can't get their license because they can't pay their tickets. Unlike the DRP, it does not have any sort of indigency waiver program, so with the DRP, if people come to us and they have surcharges, and they make under 25% of poverty guidelines, right now we can just send an application to the program and they'll get all their surcharges waived and the DRP holds will be lifted. There's nothing like that for the tickets. They just have to take care of all their tickets and then the counties can tell Omnibase, "Okay, the tickets are taken care of. You can lift the hold." But there's nothing for people who are indigent to help them start driving again.

Scott Henson: Wow. Just as an aside on that DRP program, indigency program, the Fair Defense Project where you work, and my blog Grits for Breakfast actually teamed up on a two year long campaign to get those rules implemented. It was a huge fight and took a lot of work. One of the things that was nerve wracking about the fix they wanted to do for the DRP this time is they were gonna take away those indigency programs that your organization and me had worked for so long to get back in the day. It seemed like a huge step backwards, but there's a whole nother program where there's no indigence accommodation at all is what I'm hearing. I think most legislatures aren't really aware of that. They think the DRP is where all of these drivers license suspension are coming from. The total is so big, it's not surprising that there's more than just the DRP generating it, but anyhow-

Scott Henson: The legislature doesn't meet for another two years, but in the mean time there's a lot that local judges can do on their own to address some of these debtors' prison type issues. There's a lot that's in judges discretion, so talk to us a little bit about what local judges can do who want to make a dent in this problem?

Emily Gerrick: I think one of the biggest things is the license program that we were just talking about. The reason the license program is so important for the cycle of debt is because once people have a hold on their license and can't drive legally, then they keep getting more and more tickets, and they get often times at least three tickets every time they get pulled over. They get the no drivers license ticket, they get the no insurance ticket, they get a no registration ticket because they can't register their vehicle due to another hold for not paying their tickets-

Scott Henson: Plus whatever they're pulled over for.

Emily Gerrick: Exactly. Then they get fees for each of those tickets, and sometimes they're just pulled over for not having registration. Your car is kind of a moving target, and so it's really easy for people to really rapidly accumulate thousands of dollars in debt that they wouldn't have if they weren't poor and if they didn't have these holds. The thing about the Failure to Appear/Pay Program is that jurisdictions have to actually choose to enter into that program, and so they can decide to pull out of that program at any time, and I think that would make a huge difference for people. They'd be able to start driving legally again, and then they'd be much more likely to pay off their tickets 'cause that's something that is really, really holding people back right now.

Scott Henson: And even short of pulling out of the program, every individual judge is making choices to put those holds on there, to make an order for that hold to ... Even if the municipality has not pulled out of the program, the judge can simply stop ordering those holds. That's something within their discretion, right?

Emily Gerrick: Yes, and the judge can order those holds to be lifted for the hundreds of thousands of people who currently have those holds.

Scott Henson: All right. What else can local judges and JPs do 'cause I know there's really a lot of moving parts to this, and a lot of different ways to skin this cat?

Emily Gerrick: Another important thing that people are really struggling with right now are warrants that they aren't able to clear. There are a lot of judges, or a lot of courts that will not clear your warrants if you come in and try to take care of your ticket unless you have some amount of money. They'll require you to give a down payment before you can get on a payment plan, and so you can't clear your warrant. You just have to be turned away or possibly be arrested when you go to court. Judges can stop doing that. There are a lot of courts that aren't requiring down payments to get on community service plans, and are lifting warrants when people make a good faith effort to take care of their tickets. That's something that can and should be done right away.

Scott Henson: All right. How about on jail credits and community service? We changed when the judges are allowed to order those things, but we didn't really change too much. I guess we changed how much community service you get credit for, right? You get more-

Emily Gerrick: We changed the minimum, but for the people who have thousands of dollars, that translates into hundreds of hours. One thing that judges can do, the law changed the minimum. They didn't put a maximum on it, so judges can give a lot more community service credit to people, they can give jail credit to people well over $100, and just make it easier to work off your tickets. So more credit per hour when you do community service would be really helpful. Another thing about community service that we see a problem with is right now, judges are only allowed to waive tickets for people who can't do the community service without undue hardships. If you can do community service without unduehardship, you have to do it before you qualify for a waiver, but there's no definition of undue hardship in the law. That's up to judges what they think is an undue hardship. Some judges I think don't understand how hard certain things are, so we have single mothers, one single mother with seven kids, she can't do community service. We have seven children that you're responsible for, you're not going to be able to go out and do community service-

Scott Henson: Or really have a life of any kind at all actually.

Emily Gerrick: That's definitely true. People do community service to help you, you're not the one doing the community service. But judges will think, "Okay, this person doesn't have a disability, so they don't have an undue hardship. They can do the community service." That will make it so the person is trapped and can't do anything. I see that a lot with mental disabilities versus physical disabilities, too. Judges will think, "Well, the person, they're homeless, they have schizophrenia and bipolar disorder, they can't really navigate a complicated court system or community service plan, but they don't have any physical disabilities-"

Scott Henson: They're able bodied.

Emily Gerrick: Yes, they're able bodied so they should be able to work, so we see that happen a lot. It doesn't really make any sense 'cause again, those people, other people do community service to help those people. It doesn't make sense to order them to ... You're setting them up for failure, and I think judges can sort of think about what really is a hardship and make decisions accordingly.

Scott Henson: All right. Final question. The legislature really made a good faith stab at this. I think this is the first time they've really seriously addressed some of these questions in many years, certainly since I've been coming up there, but I think the debate sort of began to point out a lot of other areas where there's still a lot of work to be done. Going forward, where's the legislature need to look? What other types of reform should they be considering that would help this morass of millions of people wrapped up in these low level criminal justice debt systems?

Emily Gerrick: I think there's a lot things they can do with the license problem, because again, I think that's what's really making people accumulate so much debt. They can get rid of the Omnibase Failure to Appear/Pay Program, or they could just have an indigency program built into it that would help people. They can also, other things about licenses that make it hard. License should only be suspended when it's for a public safety reason. Right now we have if you have a possession of marijuana charge, nothing to do with driving, then you lose your license. Things like that. I think that those don't really make sense and trap people in the system.  As far as the actual court system, I think putting in statute all the things that we just talked about and then one big thing would be making it possible for judges to waive court costs and fines more regularly, 'cause right now there's still a lot of limitations and statute on that. Then of course just putting limits on jailing people for debt at all. That's how we're really going to get the end of debtors prison is by ending jail for debt, and right now they haven't' done that.

Scott Henson: That is the shortest distance between two points, isn't it?

Emily Gerrick: It is, yes.

Scott Henson: All right, well thank you so much Emily. I appreciate you talking with me about this.

Emily Gerrick: Thank you.

Transcribed by Edited slightly for grammar and clarity by Scott Henson.

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