Modern Day Debtors'Prison? Suit Attacks ‘Hot Check Court'

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By Daniel Gill

Sept. 6 — An Arkansas judge, city and county allegedly violated the U.S. and Arkansas constitutions by systematically imprisoning indigent citizens who couldn’t pay large fines on even very small “bad check” violations, according to a federal class action lawsuit ( Dade v. City of Sherwood, E.D. Ark., No. 4:16-cv-00602-JM, complaint filed 8/23/16 ).

The Arkansas affiliate of the American Civil Liberties Union, together with the Lawyers Committee for Civil Rights Under the Law, filed the class action lawsuit Aug. 23 in the U.S. District Court for the Eastern District of Arkansas on behalf of five named plaintiffs against the City of Sherwood and Pulaski County, Arkansas, and Judge Milas H. Hale, III, who sits in the state district court located in Sherwood.

The crux of the suit is that the “Hot Check” division of the Sherwood District Court systematically incarcerates misdemeanor offenders for failing to pay their fines, without first questioning whether the defendants have the means or are able to make the needed payments. At the same time, the court continues to add new penalties and fines, including for being jailed, against the offenders.

The complaint doesn't seek an award of damages, but prays for declarative and injunctive relief, directed at ending the court and county's practices in its so-called “Hot Check court.” According to the complaint, this division of the district court in Sherwood handles all Pulaski County (including Little Rock) prosecutions of Arkansas' “Hot Check” laws, which govern prosecution against persons writing “bad” personal checks (i.e., with insufficient funds, or “NSF”).

Plaintiffs' attorneys Hallie Ryan, of the Lawyers Committee for Civil Rights Under the Law, and J. Alexander Lawrence, in Morrison & Foerster LLP's New York office, told Bloomberg BNA Sept. 1 that the goal of the lawsuit is to effect systemic change in this (and hopefully other) court's practices.

They assert the current system traps poor citizens who, after bouncing checks for even as little as $15 and usually for not more than a couple hundred dollars, find themselves forced to pay hundreds and even thousands of dollars in penalties, only to be jailed when they cannot stay current on paying those fees — and more fees are added every time the misdemeanor offender is jailed.

Allegations Raised in Complaint

According to the complaint, the court in Sherwood, a suburb north of downtown Little Rock, has “used the threat and reality of incarceration to trap their poorest citizens in a never-ending spiral of repetitive court proceedings and ever-increasing debt.”

  • The allegations set forth in the complaint include:
  •  Hot check defendants are forced to appear every few months, even if they are current on making arranged payments for their fines. Even though each defendant usually spends less than a minute engaged with the judge, he or she has to commit a significant amount of time to make every such appearance, including travel and wait time in court;
  •  If the hot check defendants do not attend such required hearing, regardless of whether it is because of illness or inability to leave work, they face increased fines and/or incarceration;
  •  The hot check defendants are compelled to sign invalid waivers of their right to counsel before they can enter the courtroom to be heard (knowing they face further fines and jail time if they miss their hearing dates);
  •  The lawsuit defendants are misusing and misapplying public funds paid by taxpayer plaintiffs by jailing the misdemeanor offenders without making any inquiry as to their ability to pay the fines levied against them;
  •  The court closes its hearings to the public, generally allowing only parties to enter the courtroom;
  •  The lawsuit defendants violated the Arkansas Code by failing to “take into account a defendant's ability to pay when imposing fines in the first instance and when addressing a defendants's failure to make payments previously ordered by the court.”
  •  The court's practices violate the Sixth and Fourteenth amendments' right to counsel by improperly compelling counsel waivers; Fourteenth Amendment's due process and equal protection clauses by locking up persons unable to pay fines; Arkansas Constitution provisions which prohibit imprisoning a person for failure to pay a debt if the person is unable to pay; failure to make inquiry into ability to pay before imprisoning that person; and Arkansas Constitution section guarantying right to effective assistance of counsel for proceedings leading to imprisonment.

Defendants' Responses Not Yet Due

Responses from the named defendants are not due to be filed until mid-September, two lawyers for the plaintiffs told Bloomberg BNA in an Aug. 31 telephone call. Phone calls and e-mails to the County Attorney and Sherwood City Attorney have not been answered, but defendant Judge Hale, through his counsel, Michael Mosley, North Little Rock, spoke with Bloomberg BNA Sept. 1.

“We deny the allegations of wrongdoing,” Mosley said, noting that Judge Hale was only recently served with the complaint and that they are currently preparing a response.

Defendant Hale is a part time judge and also practices as a private attorney, primarily in family law and litigation, Judge Hale told Bloomberg BNA in a phone call Sept. 1. Judge Hale advised that he could not comment on the suit, on the advice of his attorney.

The judge did tell Bloomberg BNA, however, that the Hot Check court hearings, like the court's other matters, are in fact open to the public and the press, depending on whether there is available space. He noted that the dockets can get quite large.

De Facto Debtors' Prison

The complaint details a system that appears to be designed to generate revenue at the expense of the county's poorest denizens. The complaint states that court costs, fines and fees assessed and collected by the Sherwood District Court (a limited jurisdiction state court hearing misdemeanor and small claims cases) brought in more than $12 million in the last five years and is the third highest revenue source for the city, after city and county sales taxes.

A recent story in the Arkansas Times refers to the Hot Check court hearing day as “ million dollar Thursday,” a term attributed by the newspaper and Internet media outlet to court staff.

The complaint recounts the experiences of its four named plaintiffs.

Charles Dade wrote six bad checks, totaling about $360, in 2008 and 2009, the complaint states. Since then he has been ordered to pay about $4,000 in costs, fines and fees and has been jailed for more than 100 days for failure to make payments.

Nakita Rochelle Lewis' story is similar. As told in the complaint, she wrote a series of bounced checks in 2006 and since then has been fined thousands of dollars and has been jailed for almost 80 days because she was not able to make her payments.

Nikki Rachelle Petree is another named plaintiff. Her travails began when she bounced a single check for $28.93, according to the complaint. In an article in the Huffington Post, Petree said that the only reason she bounced the check was that her then employer did not electronically “direct deposit” her final paycheck — she was supposed to pick up the check personally — causing her account to be with insufficient funds.

As a result of the mistake, Petree was arrested at least seven times over the next six years and has been fined thousands of dollars and was jailed for over 25 days, according to the complaint.

Lee Andrew Robertson wrote 11 bad checks over a two week period for a total of approximately $200. Like the other defendants, he has gone to jail on several occasions for his inability to pay his fines, for which he currently owes more than $3,000, according to the complaint.

Finally, Philip Axelroth, a 68 year old Air Force veteran, represents putative class members who have paid taxes in Sherwood and Pulaski county. He states a claim for “illegal exaction under the Arkansas Constitution for Defendants' misuse and misapplication of taxpayer funds” — i.e., the actions otherwise described in the complaint related to the administration and enforcement of the Hot Check violation, particularly the incarceration of individuals for failure to pay fines without first making the required inquiry into the defendants' ability to pay.

Attorneys Ryan and Lawrence told Bloomberg BNA that the putative class for the lawsuit numbers into the thousands, for violations occurring over many years.

Intimidation and Surrender

While the ACLU and Lawyers Committee were investigating the facts leading to their filing the complaint, Hallie Ryan's first attempt to watch hearings in Judge Hale's Sherwood District Court was thwarted by a court bailiff who denied her entry, she told Bloomberg BNA. When she asked the bailiff if the hearings were closed to the public, he responded, “I'm not telling you that, but you're not going in,” she said.

However, two days later, Ryan was allowed by court clerks to enter the courtroom and watch the proceedings. She said it was “very intimidating, being in that courtroom.” She said that except for the line of defendants waiting their turn to appear before the judge, “every person there was to facilitate prosecution. The defendants had no one looking out for their rights, advocating for them.”

Every defendant is compelled to fill out and sign a form — amounting to a waiver of right to counsel — before he or she can enter the courtroom, Ryan said and the complaint alleges. Ryan said that court staff handing out these papers told the hot check defendants that they would not be allowed into the courtroom unless they filled out the form. “Month after month after month [of appearing and signing the form, along with all the other hot check defendants there], it [the waiver of counsel] becomes normalized, a culture” to the mostly unsophisticated defendants, she said.

Ryan noted that each individual hearing inside the courtroom took only seconds, always less than a minute, and that there was never any inquiry into a right for counsel or the defendants' indigence and ability to pay a fine before a jail term was imposed, she told Bloomberg BNA.

When asked why the public defender doesn't appear in any of these hearings, Ryan told Bloomberg BNA that the court does not have its own defenders office, instead contracting private attorneys for the job. However, because virtually every hot check defendant executes the counsel waiver, no defender is assigned, and no one is there looking out for the defendants' rights, she said.

A Growing Problem in Many Jurisdictions

Lawyers Committee, which claims on its website to be the largest pro bono civil rights network in the world, founded by John F. Kennedy, has recently made addressing de facto debtors' prisons a priority, Ryan told Bloomberg BNA. The organization is participating in such a case in New Orleans and is currently investigating allegations of similar abuse in another Southern state, she said.

These de facto debtors' prisons “make it impossible to make a living,” Ryan said. “It becomes impossible to get out from under the snowballing fees,” all the result of a small dollar misdemeanor and an inability to pay levied fees, court costs, and fines.

This kind of system is “unfortunately not uncommon around the country,” Ryan and Lawrence told Bloomberg BNA.

“The lawsuit is not personal. It's about making systemic change,” Lawrence said. “We want to make Sherwood a model for other courts,” he said.

The plaintiffs' attorneys believe that the public is on their side. Lawrence told Bloomberg BNA that “the public outcry of shock in the [Little Rock] community is gratifying.”

To contact the reporter on this story: Daniel Gill in Washington at

To contact the editor responsible for this story: Jay Horowitz at

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