Poor defendants say they face modern-day debtors' prison

Since writing a check for $28.93 five years ago that was returned for insufficient funds, Nikki Petree has been arrested seven times, served 25 days in jail and paid $640 to the city of Sherwood, Arkansas, and the local county court. And her legal problems continue: The 40-year-old mother is currently incarcerated because she is unable to pay what has ballooned into $2,656.93 in court costs, fines and fees.

That’s according to a federal lawsuit filed Tuesday that claims the central Arkansas city is running what amounts to modern-day debtors’ prison, imposing heavy fines and jail time on thousands of poor people for writing bad checks.

Kristen Clarke, president and executive director of the Lawyers’ Committee for Civil Rights Under Law, said Petree’s case encapsulates the financial and legal quandary facing many low-income residents in the region. “We think that her example really illustrates the problems here in Arkansas,” said in a telephone briefing to discuss the complaint. 

The scenario of a misdemeanor escalating into hefty fines and jail time is not confined to one part of the U.S., and has increased as states and localities look to close budget gaps through fees and fines imposed through the criminal justice system, according to the ACLU.  

The city’s website said its “hot check” division issues more than 35,000 warrants each year on charges related to bad checks, and that it offers a collection service to impacted merchants and individuals at no cost, saying it can “boast an 85 percent collection rate for all cases handled.”

The lawsuit comes five months after the U.S. Department of Justice sent a letter to state court administrators underscoring that jailing indigent people for failing to pay fines is unconstitutional. The United States Supreme Court ruled in 1983 that such punishments violate the Constitutions’s Equal Protection Clause.  

“This a nationwide problem -- the Justice Department has realized that,” ACLU of Arkansas Executive Director Rita Sklar told reporters.   

Filed by the Lawyers’ Committee and the American Civil Liberties Union of Arkansas on behalf of Petree and three others, including a Sherwood resident who contends the practice is a misuse of taxpayer funds, the suit accuses the city of Sherwood, Pulaski County and Judge Milas “Butch” Hale of violating the constitutional rights of thousands of residents. 

The Sherwood District Court generated $12 million in revenue in the last five years, with the money coming from the court accounting for nearly 12 percent of the city’s budget, Clarke said. Defendants are required to sign a waiver relinquishing their rights to an attorney before they enter the court room, she claimed. No transcripts are generated of the proceedings, which are closed to the public.

Hale rejects the comparison to a debtors’ prison, saying that people are asked about their ability to pay and then offered a chance to go on a payment plan. 

“We incarcerate for nonpayment or failure to comply with a court order only after a third or fourth time,” said Hale, who added that defendants are given the option of community service instead of jail. “The main thing is they have to pay restitution.”

The $25 fee for a bounced check, along with court costs and a warrant charge, could add up to thousands of dollars as additional fees are tacked on if the defendant does not come to court and pay the initial costs in a timely manner, the judge said.

Hale acknowledged that defendants are asked to waive their right to counsel, but said that is intended to speed up the process, noting that the waiver also outlines potential legal sanctions. “[I]f you’re charged with a misdemeanor, you could receive a one-year jail sentence or a $1,000 fine.” 

Hale also said that a public defender is available to answer defendants’ questions.

“We’re not a court of record,” said Hale in acknowledging Clarke’s assertion that there are no transcripts of the proceedings. But he denied that the media and others are barred from his court, as the advocacy groups allege, saying that the number of people allowed in are limited for security and practical reasons. 

“We try to limit the number simply because we don’t have the room.”

Steve Cobb, the attorney for Sherwood, said the city was not prepared to comment, while Virginia Hillman Young, Sherwood’s mayor, did not return requests for comment.