John A. Steakely

Attorney John Steakley is a 1996 graduate of the University of Tennessee College of Law. He began his career as the Special Prosecutor for Drug Crimes for a multi-county, multi-agency drug task force in Tennessee, where he represented the State of Tennessee in thousands of felony and misdemeanor cases in a 5-county judicial district.

No Incarceration = No Lawyer = Debtor Prison

No Incarceration = No Lawyer = Debtor Prison

It seems that North Carolina has may try to save money by reclassifying certain crimes to carry no jail time and thus carry no entitlement to a taxpayer-funded attorney

Earlier this month, in an attempt to cut $2 million from its budget, North Carolina eliminated access to public counsel for thousands of poor criminal defendants each year. That’s not what the new law says: Tucked inside the state’s new budget, it reclassifies more than a dozen crimes into misdemeanors that cannot result in jail time. This is part of a pattern. Over the past two decades, swelling caseloads and fiscal belt-tightening have led several states, including Virginia and Minnesota, to create classes of crimes that can only be punished with a fine. In other states, the same thing happens case by case in the courtroom, where judges and prosecutors routinely declare they will not pursue jail time for minor infractions.

What’s not to like, if you’re caught with a small amount of drugs or driving without a license? The problem is that, left to fend for themselves in the courtroom, most defendants lack the basic legal skills to argue their innocence or reduce their punishment, and they’re often not told of the lifelong consequences that even minor convictions can carry. In an era when getting marked as criminal is often the severest punishment in itself, it makes increasingly little sense for only those facing incarceration to have a right to counsel.

The significance of petty convictions has changed a great deal since 1979, when the Supreme Court solidified this standard. Over the past three decades, the Internet has made criminal records available at a click, while public and private institutions have created myriad new restrictions on those with past convictions. More than ever, people with a record of misdemeanors, as well as felonies, are excluded from employment opportunities, student loans, food stamp eligibility, and professional licensing. A guilty plea to one of North Carolina’s new array of misdemeanors can enhance punishments for subsequent convictions. Also, an immigrant who racks up three or more misdemeanors can be deported. The same can happen with any one misdemeanor involving what the government deems “moral turpitude,” such as prostitution, selling drugs, or even writing a bad check.

Even before North Carolina’s new law took effect, judges commonly waived appointed counsel on small yet criminal marijuana charges, according to Matthew Suczynski, a criminal defense lawyer. “Most people being charged with marijuana possession are African-Americans, when they’re 17, 18 years old,” Suczynski told me. “Once they get convicted and have that mark against them, it’s nearly impossible to overcome. Those records are out there forever. It’s a system that just runs people over.”

More than 80 percent of defendants across the country are considered poor enough to be eligible for free defense counsel. At least 90 percent of all defendants will plead guilty to the charges they face. Research shows that defendants who don’t have lawyers are even more likely to simply enter a guilty plea, pay a fine, and be done with the process. That makes it cheaper for courts to run efficiently. The price, though, is often a clear understanding of the ramifications of pleading guilty.

In response, the effort is to reclassify crimes as not carrying incarceration so they defendants are not entitled to attorneys:

These efforts ease the caseloads of overburdened public defenders, allowing them to devote more time to the cases that do land in court. Last year the Brennan Center found that, on average, public defenders often spend a scanty total of six minutes with their clients at arraignment. By focusing on just one crime—driving with a suspended license—Boruchowitz says that Spokane’s diversion program reduced public defender caseloads by a third. That sounds a lot better than saddling poor defendants with consequences they’ve had no help thinking through.

Six minutes at arraignment?  If that's not enough to send someone running to hire a private attorney, I don't know what is.

Coincidentally, a recent and relevant Georgia case on this issue is the Ham v. State, 307 Ga.App. 485 (2010) holding that people have a right to an attorney in traffic cases because in traffic cases people can be sentenced to incarceration: 

In Jones [Jones v. Wharton, 253 Ga. 82,  316 S.E.2d 749 (1984)], the Supreme Court held that under Argersinger v. Hamlin, 407 U.S. 25,  92 S.Ct. 2006,  32 L.Ed.2d 530 (1972), regardless of whether the charges are felony or misdemeanor charges, when an accused is put on trial and faces a term of imprisonment, he is constitutionally guaranteed the right to counsel. Id. The accused may make a knowing and intelligent waiver of this right, but we may not presume such a waiver from a silent record.

 Ham v. State., 307 Ga.App. 485, 705 S.E.2d 301 (Ga. App., 2010)

Ham prevailed because there was no record of what happened in traffic court, so the appellate court had no choice but to give him the benefit of the doubt.

But this all raises another question.  Without incarceration, what are these places supposed to do when people don't pay?  Apparently, this

[P]eople struggling to pay overdue fines and fees associated with court costs for even the simplest traffic infractions are being thrown in jail across the United States.

Critics are calling the practice the new "debtors' prison" -- referring to the jails that flourished in the U.S. and Western Europe over 150 years ago. Before the time of bankruptcy laws and social safety nets, poor folks and ruined business owners were locked up until their debts were paid off.

Reforms eventually outlawed the practice. But groups like the Brennan Center for Justice and the American Civil Liberties Union say it's been reborn in local courts which may not be aware it's against the law to send indigent people to jail over unpaid fines and fees -- or they just haven't been called on it until now.

Opponents say that the use of incarceration to collect fines and fees costs more than it collects.

"It's a waste of taxpayer resources, and it undermines the integrity of the justice system," Carl Takei, staff attorney for the ACLU's National Prison Project, told

"The problem is it's not actually much of a money-making proposition ... to throw people in jail for fines and fees when they can't afford it. If counties weren't spending the money jailing people for not paying debts, they could be spending the money in other ways."

. . .

Fines are the court-imposed payments linked to a conviction -- whether it be for a minor traffic violation like driving without a license or a small drug offense, all the way up to felony. Fees are all those extras tacked on by the court to fund administrative services. These vary from jurisdiction to jurisdiction, with some courts imposing more than others.

As states and counties grapple with shrinking budgets and yearly shortfalls, new fees are often imposed to make up the difference, though they can be quite overwhelming to individuals passing through the system -- 80 percent of whom qualify as indigent (impoverished and unable to pay), according to the Brennan Center. Florida, for example, has added 20 new fees since 1996, according to the center. North Carolina imposes late fees on debt not paid and surcharges on payment plans.

 . . .

At the very least, according to the high court, the courts must inquire and assess whether a person is indigent and might benefit from an alternative method of payment, like community service, before sentencing.

"Even though a lot of jurisdictions do have statutes on the books that allow judges to waive fines and fees, it doesn't always happen," explained Lauren Brooke-Eisen, counsel for the Brennan Center's Justice Program.

Much of the time, probation or the conviction itself will hinder individuals from finding employment (Brennan estimates that some 60 percent are still unemployed a year after leaving jail). But another incarceration over debt could either ruin the job they managed to get or make it even harder to find one.

To try to make it more efficient, municipalities are turning to private probation companies:

Many jurisdictions have taken to hiring private collection/probation companies to go after debtors, giving them the authority to revoke probation and incarcerate if they can't pay. Research into the practice has found that private companies impose their own additional surcharges. Some 15 private companies have emerged to run these services in the South, including the popular Judicial Correction Services (JCS).

In 2012, Circuit Judge Hub Harrington at Harpersville Municipal Court in Alabama shut down what he called the "debtors' prison" process there, echoing complaints that private companies are only in it for the money. He cited JCS in part for sending indigent people to jail. Calling it a "judicially sanctioned extortion racket," Harrington said many defendants were locked up on bogus failure-to-appear warrants, and slapped with more fines and fees as a result.

Repeated calls to JCS in Alabama and Georgia were not returned.

I happen to be good friends with a JCS probation officer.  Nice guy. 

Defenders of the collection programs say the money is owed to the state and it's the government's right to go after it. "When, and only when, an individual is convicted of a crime, there are required fees and court costs," Pamela Dembe, president of the First Judicial District of Pennsylvania, which oversees Philadelphia, said in a statement to reporters in May. An earlier review by the courts found an estimated 400,000 residents owed the city money. "If the defendant doesn't pay, law-abiding taxpayers must pay these costs."

The ultimate power of the state over the citizenry is physical force.  "It's all physical in the end", some say.  There has never been a civilized society in the history of mankind that didn't eventually use force to compel its most misbehaving members to either behave in a certain way or be segregated from the rest of society. 

For the guy who owes the city $100 and simply refuses to pay, what's the solution?  Ask him nicely?  Beg him?  Say "pretty please"?  At some point the state will incarcerate that person to make the point to other people that if they don't pay they will be incarcerated too.  It isn't about money.  It's about setting an example for everyone else out there. 

I think it's a little misleading to compare the cost of incarceration to only the money collected from the incarcerated people.  You have to compare the cost of incarceration to ALL the money collected because that money was collected under the believable threat of incarceration.  Keeping that threat believable isn't cheap, but it's an effective tool for collecting fines and fees from everyone else. 




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