WASHINGTON ― Lee Robertson’s trouble began in late 2009, when he was undergoing his first stint of chemotherapy to battle the pancreatic cancer that had made it impossible for him to work. In the course of two weeks, Robertson wrote 11 checks at stores near his home for small amounts ranging from $5 to $41.
Robertson started off owing a few stores about $200. Six years and seven arrests later, in a closed courtroom in Sherwood District Court in Arkansas, Judge Milas “Butch” Hale sentenced the cancer patient to 90 days in jail. His crime? Owing the court $3,054.51.
That was last month. Robertson, 44, is now one of the plaintiffs in a class action federal civil rights lawsuit filed this week by the Arkansas Civil Liberties Union and the Lawyers’ Committee for Civil Rights Under Law. The suit aims to take on what has been described as a “modern-day debtors’ prison” in the city of Sherwood. Similar practices exist in courts around the country, including in several cities in St. Louis County, which received attention for their debt collection practices following the unrest in Ferguson, Missouri, two years ago. Groups like Equal Justice Under Law, ArchCity Defenders, the Southern Poverty Law Center, the Lawyers’ Committee for Civil Rights Under Law and the American Civil Liberties Union have been mounting challenges to unconstitutional court practices in many parts of the nation.
In Sherwood, the “Hot Check Division” of the municipal court is drawing scrutiny. While the division is supposed to be part of the municipal court, the city has marketed the division to the business community in Pulaski County, according to the lawsuit. Sherwood lists the division as a “department” on its website, and calls the court’s work a “service” for merchants ― one that issues “over 35,000 warrants annually” on charges in connection with bad checks. The court collected nearly $12 million in five years.
The new lawsuit describes a “lucrative” system in Sherwood that only barely resembles an actual court or independent judicial process. Bailiffs tell defendants that the court is closed, not allowing family and friends inside, and defendants are forced to sign a “waiver of counsel” form to enter the courtroom, meaning they forfeit their right to an attorney.
The suit claims that the Sherwood Police Department acts as an “extension” of the court’s “collections scheme,” arresting hundreds of people on “failure to pay” or “failure to appear” charges and helping the district court contribute nearly 12 percent of the city’s budget. Each overdrawn check, no matter how small, can bring in $400 in fines and fees, plus restitution for the amount of the check.
“This is a broken court system that disregards due process rights at every turn,” Kristen Clarke, president and executive director of the Lawyers’ Committee for Civil Rights Under Law, said in an interview, adding that the court pays “no attention” to due process rights.
“People are doomed for failure when they appear before the court, and most significantly trapped in this never-ending cycle of expanding debt,” she said. “With the resurgence of debtors’ prisons, we will continue to see people cycle in and our of jails and prisons across our country merely because of their inability to pay fines and fees tied to low-level, nonviolent offenses.”
Clarke said the Sherwood court, in particular, is “notorious” in the region.
“The facts were even worse than we thought,” she said.
Because of opposition to tax increases, the lawsuit states, “municipalities have turned to creating a system of debtors’ prisons to fuel the demand for increased public revenue from the pockets of their poorest and most vulnerable citizens.”
Robertson ultimately spent more than a month behind bars, cutting down on his time by doing manual labor for the jail. While his cancer is in remission, the lawsuit alleges that he did not receive medication for pancreatitis and high blood pressure during his time in jail. He was released on Aug. 15. (Shortly after Robertson’s departure, a 34-year-old man who was in Pulaski County Jail for criminal mischief and public intoxication hanged himself, an indication of potential problems in the facility. Experts agree that jail suicides are largely preventable, as The Huffington Post reported last month.)
Between the time of his charges and his latest jailing, Robertson had been sentenced to a stretch in jail over outstanding fines. Sherwood police officers came to his door, demanding money and threatening arrest. A private probation company, ProTrac, also charged Robertson $35 per month on top of the payments to the court, burying him further in debt.
He’s not alone. Nikki Petree, 40, was charged for bouncing a single check for $28.93, according to the lawsuit. She has been arrested in connection with that charge on at least seven occasions, and been jailed for more than 25 days. She’s paid at least $640 to the city.
Asked whether the term “scam” should be used to describe the practices of Sherwood’s municipal court, Clarke said it “feels too small a term to attach to what’s happening.”
The Obama administration has called attention to excessive fines and fees, and the Justice Department recently told a federal appeals court that bail practices that don’t account for indigence are unconstitutional. But many civil rights advocates would like the federal government to get more aggressive by prosecuting judges who clearly violate constitutional rights when they lock up poor individuals without looking into their financial capabilities.
“We do hope that the Justice Department will use its bully pulpit to speak out against debtors’ prisons and the criminalization of poverty and take more enforcement action to help bring an end to these broken court systems across the country,” Clarke said.
Judge Hale did not respond to a request for comment.
Read the lawsuit below:
UPDATE: Aug. 25 ― All of the plaintiffs in the lawsuit are no longer incarcerated, with Charles Dade and Nikki Petree being released from jail on Thursday, according to Rebecca Sturtevant, a spokeswoman for the Lawyers’ Committee for Civil Rights Under Law.
A reporter with the Arkansas Times visited the “hot check” court on Thursday and spoke with a number of defendants, some of whom broke down in tears talking about their ordeals. One man claimed to have spent 405 days in the Pulaski County Jail over the years after passing a $58 hot check back in 1998. Richard Green Sr. said he now pays $200 every month and has to show up at court every three months.
“I have lost everything because of this,” Green told the Times. “It’s just a revolving cycle I’m on. You never know when you’re going to get it paid off. It’ll seem like you’re going to get it paid off, but you don’t get it paid off. You think it’s going down, but then it’s going back up on you. You never get through paying.”
None of the defendants spent more than 45 seconds in front of Judge Hale, according to the report. Hale issued a statement to KATV, claiming he does not “run a so called ‘debtor’s prison’ in Sherwood. If a defendant pleads guilty, or is found guilty, of writing a hot check we set up a payment plan. It is only after the third or fourth time that they fail to comply with a court order that we incarcerate.”
Hale’s statement makes no mention of his constitutional duty to make an inquiry into a person’s ability to pay before sentencing them to incarceration for failing to make a payment.