SMOKINCHOICES (and other musings)

August 6, 2013

Jailed illegally over fines

Commentary: Many indigent are unlawfully jailed

Commentary:  Jack D’Aurora

True or false: Debtors’ prisons exist in the U.S. Sadly, the     answer is true, and debtors’ prisons exist because the      indigent often face misdemeanor charges without the        benefit of counsel. Fifty years ago, the U.S. Supreme            Court decided in Gideon vs. Wainwright that indigent defendants in criminal cases must be provided      with court-appointed counsel, but many Ohio counties do not provide counsel in misdemeanor cases    where the court is trying to collect money.

As a consequence, the indigent often are imprisoned for their failure to pay fines and court costs.       What’s really disturbing is that, many times, these people are wrongfully incarcerated. The U.S.             Supreme Court held in 1983 that it is unconstitutional to imprison people for not paying fines or            court costs when they lack the financial means to pay. Imprisonment is permissible only after a court conducts a hearing concerning the person’s financial condition and concludes that a person has              willfully refused to pay.

  • By statute, this process must be followed in Ohio and, if imprisoned, a person must be credited             $50 against the fine for every day of jail time. Imprisonment is never permissible for failing to         pay court costs.

According to the American Civil Liberties Union of Ohio, from 1999 to 2011 the number of people living            in poverty in Ohio increased by 58 percent. As poverty increases, more people are at risk for being    wrongfully imprisoned.

In a report released last April, the ACLU found that in a six-month period in 2012, nearly a quarter of               the jail bookings in Huron County were related to failure to pay fines. According to the report, the staff at the Norwalk Municipal Court Clerk’s Office in Huron County admitted that when court records show a person to have been incarcerated for 10 days on a contempt charge, the defendant likely   was jailed for failure to pay fines. According to Ohio Public Defender Tim Young, “ Because these people are not represented by     counsel, they have no idea what their rights are. They just get pushed around.”

ACLU observers reported that the typical process in the Norwalk Municipal Court is for a defendant to          be found guilty of an offense and then ordered to pay fines and court costs by a certain date. If            payment  is not made, the court issues a summons requiring an appearance in court, where the          defendant is assigned a payment schedule.

Typically, no inquiry is made as to financial status and ability to pay. Defendants are not informed of              their right to counsel and are warned that if they do not stay current with the payment plan, they will           be  required to turn themselves in to jail on a specific date.

If the defendant does not pay the amount due or report to jail on the appointed date, an arrest warrant         is issued, and the defendant will be incarcerated for 10 days. This process results in additional fees,  meaning that upon release, the defendant will find himself facing even more fees and the possibility           of more jail time.

  • “Regrettably, several of these cases had to go up on appeal,” said Young. “It’s hard to believe this       kind of abuse occurs, but it does.” The ACLU found similar practices in the Hamilton County    Municipal Court and the municipal courts in Bryan, Mansfield, Parma and Sandusky. Young         agrees that the problem occurs in several areas in Ohio.

Tricia Metcalf’s story, as related in an ACLU report, is typical. Metcalf, a single mother of two teens, was convicted in 2006 of passing bad checks, which resulted in the imposition of a fine and a payment plan of  $50 per month. Working minimum-wage jobs, money often was tight. If she missed a payment, an arrest warrant was issued, and Metcalf would be incarcerated.

Metcalf once asked the judge about doing community service and being allowed extra time to pay. Some  extra time was allowed, but she eventually was jailed. Since 2006, Metcalf has been incarcerated five times. The uncertainty of her situation hurt her ability to work and caused her children to move in with her mother. At one point, she owed $2,000 and was jailed for 37 days. The court never conducted a hearing to evaluate her ability to pay.

Being represented by counsel likely would have made a difference for Metcalf, but Young explained that      most counties can’t afford public defenders for misdemeanor cases. Of course, one has to wonder how it is that we have judges who do not understand the limits of their authority, but that’s a subject for another day.

So, here we are, 50 years after Gideon’s mandate to fix the legal system, and still the indigent are being wrongfully imprisoned.

Jack D’Aurora is a partner with The Behal Law Group.

jdaurora@behallaw.com

(My Comment:

There is so much we don’t really hear about and know about beneath our daily newscasts.  We of course understand that the plight of the once middle class has become extremely painful.   And it seems the truly indigent simply have nothing left, including rights.    The ACLU  no doubt has it’s boundaries stretched beyond reason and with limited funding.   But when the law itself including the judges exhibits tunnel vision………. . . . what is society to do?  

Hardships have grown so badly since Kasich took office in Ohio.   Cut-backs on everything meaningful to our citizens including but not limited to self-determination for reproductive rights; selling off of Ohio’s assets to  have the books reflect our governor’s brilliant financial savvy.  I call it criminal for he has carefully orchestrated his radical changes with first,  small  alterations in the law which free him to do as he chooses  – – unimpeded re: health clinics,   his fancy privatized ‘Employment bureau’,  under funding of the educational system and total disregard for mandated law regarding funding equally for students across the board.  Over-populating the prisons with those deemed guilty of petty injustices while under-staffing the personnel to manage all. 

It is really unpleasant to run through the newspaper, loaded as it is with stories like this.  It’s depressing and a total downer. As an inhabitant of this planet, this country, this state and this city,  we actually do have a responsibility to be aware and informed.    What choice is there?.  .  .  .   Just turn it over to the Mad Men and let them run the zoo?   Not a chance – think about it.  Until we’ve cashed it in, its our party too. We are being helped in this by people like Mr. D’Aurora with the Behal Law Group, who through this article has helped us (me) to see what else is going on that I wasn’t seeing.  Knowledge, like it or not, is a good thing.  Thank you Mr. D’Aurora for what you have given.

We have to enter in.  We must be aware and  be a player- – do what we can do to right wrongs as we find them, in the way we are able to..  For how else can we achieve our balance?  There is no point to living if we can’t participate in the good that is here, that we HAVE been blessed with.  We are meant to enjoy life, fully and be grateful for the good that IS all around us.    I have no sword,  no steed to transport me, but I have my mind and words;  . . . this blog.  We give what we can, each in our own way.   And, that is good, as it should be.  It’ll never be finished, we’ll never get it done, but that’s okay.   Life streams through us as long as we continue to be,  and have the urge – – to do.   That’s how it should be.. . . we desire,  and life calls to us, responds. .    .     .   so we keep on keepin’ on.   Jan)

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