Defenders are the answer, but where are they?
Much like the exhaustive research and systemic work done by Orange County public defenders to expose an entrenched practice of snitching/failing to disclose exculpatory evidence, it seems obvious to me that a public defender office taking the wide view on systemic issues of justice is essential to keep the criminal justice system from exploiting poor people at every opportunity that doesn't present challenge.Several weeks ago my NAPD blog post tried to give the Orange County Public Defender's Office due credit for illuminating 30 years of collusion and deception by the Orange County Sheriff's Office and District Attorney's Office in a snitching scandal that has compromised justice for thousands of indigent defendants and even gotten all prosecutors thrown off an active capital case. In that post, I suggested that ONLY a public defender's office could have exposed this incredible injustice because public defender offices are in a uniquely advantageous position to see such patterns of conduct. Additionally, they have the ability to harness the work of multiple staff members to investigate and research continuing illegal or unethical behavior on the part of other criminal justice agencies.
Last week, in Amarillo, TX, it was a civil rights lawyer – not a public defender – who filed a class-action lawsuit against the City of Amarillo for its practice of jailing people who cannot, and therefore do not, pay the fines and fees associated with convictions in municipal court (the vast majority of which are traffic violations).
While the class in the litigation was small, litigation research revealed that in calendar year 2015, more than 9,100 people resolved their fines and fees by serving jail time in the Amarillo City Jail. In 2014, that number was over 11,000.
This is happening in a country that outlawed “pay or lay” prisons in 1971 (Tate v. Short). It is happening in a state (Texas) that statutorily defines indigence, mandates “ability to pay” assessments, and prescribes an alternative sanction for those who cannot (community service). In 2015, of 47,627 cases, only 5 cases had fines or fees waived for indigence. Only 318 cases involved community service as an alternative way to satisfy the sanction (0.6% of all cases.) The statistics are actually worse in calendar year 2014 (9 clients had fees waived and 227 were offered community service with more than 56,000 filings). However, the City of Amarillo evidently makes its own rules, and follows this local ordinance instead of the letter of the law: “In the event of a conviction in a case pending before the Municipal Court, the judgment shall be in the name of the State and shall recover of the defendant the fine and other penalties for the use and benefit of the City. Except as otherwise provided the Court shall require the defendant to remain in the custody of the Chief of Police of the City until the fine, State-imposed fees and other penalties are paid, and order that execution issue to collect the fine and penalties.” (Municipal Code 2-8-111)
The poverty rate in Potter and Randall Counties is about 17%, which – to no surprise – coordinates almost exactly with the number of people satisfying their fines and fees with jail time because they cannot pay (19.5% in 2014 and 19.2% in 2015). Add another layer of outrage to the situation: the litigation attests that the court deceptively (at best, outright forgery is a distinct possibility) produces documentation with electronic signatures that the client accepts jail time in lieu of community service or fee waiver. Both clients in the class-action deny ever seeing or signing this waiver.
So we're back to the age-old question that swirls around in any justice-lover's attempt to address the rampant practices of unconstitutional bail, failure to conduct ability to pay assessments, alternative sanctions, debtor's prisons, and the generational poverty that often results when poor people have any contact (even for minor, non-violent offenses like expired registration tags) with the criminal justice system: where are the lawyers?
In Amarillo, none of the 40-50,000 people who would qualify for a public defender in municipal court are afforded one. While failure to obey a court order imposing fines and fees may be punishable by prison time, the originating charge does not. No lawyer appears to contest the validity of the charge, insist on an individualized ability to pay assessment, or advocates for the most advantageous disposition given the client's unique life circumstances. Later, when poor people can't pay, no defender-advocate accompanies them to court where – each year in Amarillo – right around 10,000 people do in fact go to jail because of their poverty.
The lack of lawyers in municipal court is certainly part of the problem. But I think it's more than that. In Amarillo, indigent defendants are represented by assigned counsel. I would like to believe that high-quality public defense delivery can be delivered in a number of ways. I would like to believe that with independence, training, workload controls, sufficient resources, and meaningful oversight, an assigned counsel system is just as effective at achieving justice as a full-time public defender office. However, when I read about the travesty of justice in the City of Amarillo – a city where no attorneys represent clients in municipal court and where all public defense advocacy is through an assigned counsel system – I wonder….
Much like the exhaustive research and systemic work done by Orange County public defenders to expose an entrenched practice of snitching/failing to disclose exculpatory evidence, it seems obvious to me that a public defender office taking the wide view on systemic issues of justice is essential to keep the criminal justice system from exploiting poor people at every opportunity that doesn't present challenge. Assigned counsel systems – which seem inevitably disinclined to tackling “system-wide” issues – would have failed to achieve what the Orange County Public Defender's Office did; and failed to initiate an end to the debtor's prison in Amarillo, as Jeff Blackburn's class-action lawsuit intends.
The right to counsel was affirmed as a fundamental right because the Supreme Court recognized that poor people are the most vulnerable to abuse at the hands of the state, and that only the guiding hand of counsel can represent their interests – whether those interests are innocence, or poverty, or both and more. Having lawyers in municipal court in Amarillo is a start, but only just. Creating an office of advocates with the perspective to witness, document and challenge systemic policies – to undo every illegal or unjust standard practice that deprives poor people their access to justice – is a far better project.
In the absence of that type of defense program in Amarillo, I want to tip my hat to NAPD member and civil rights attorney Jeff Blackburn, and his co-counsel Chris Hoffman. While Jeff is not a public defender per se, he has spent his entire career advocating for poor people and provides both inspiration and practical tools to the struggle for public defense reform. Jeff will be providing an NAPD webinar on the simple research question that quickly developed into this lawsuit sometime during the month of March. Please keep an eye out. Meanwhile, you can read the pleadings on MyGideon and a sampling of local press is below.
In Orange County, in Amarillo, and so many other places, the lesson is clear: whenever the criminal justice system's ability to dispense fair and accurate outcomes is threatened, resourced, committed public defenders are the answer.
“The real cost of tickets to taxpayers” 14 January 2016.
ABC 7, Niccole Caan
“'Debtors Prison' Lawsuit filed against city of Amarillo” 14 January 2016.
KAMR, Jackie Kingston
“City sued over municipal fine policy” 15 January 2016.
Amarillo Globe News, Robert Stein