Being Poor in the Legal System

Transcription

1 Being Poor in the Legal System Alex Kornya Assistant Litigation Director Iowa Legal Aid Rita Bettis Legal Director ACLU of Iowa March 15, Des Moines Civil And Human Rights Symposium

2 AGENDA Introductions (Rita Bettis & Alex Kornya) Overview: How Poverty Impacts People in the Legal System Generally (Rita Bettis) Case Study: How Poverty Changes the Outcome of a Case (Alex Kornya) Court Debt in Detail (Alex Kornya) Debtor s Prison Practices and New Model Bench Card (Rita Bettis) Conclusion & Questions (Rita Bettis & Alex Kornya)

3 Introductions Alex Kornya Assistant Litigation Director Iowa Legal Aid Rita Bettis Legal Director ACLU of Iowa

4 Overview: How Poverty Impacts People in the Legal System Generally The Sad Reality is that the Impact is PERVASIVE and our System of Justice is UNEQUAL CRIMINAL JUSTICE SYSTEM Including in areas like access to counsel, criminalization of homelessness, & court debt CIVIL LEGAL SYSTEM Everything from housing to public benefits to the right to debt relief EVEN VOTING RIGHTS!

5 Case Study: How Poverty Changes the Outcome of a Case Court debt is what it sounds like: money owed to or through the courts Court debt can be civil, criminal, or juvenile Court debt can be assigned even for deferred judgments, acquittals, dismissals Poverty is an aggravating factor for court debt

6 Case Study: How Poverty Changes the Outcome of a Case Court Debt & Poverty Court debt both enhances & is enhanced by poverty A non-indigent does not owe the state Indigent defense fees Jail fees, if they can make bail Anything if they can hold out and take case to trial Collection fees are based on percentage, so they are more onerous for the poor due to their larger balances

7 Case Study: How Poverty Changes the Outcome of a Case Collection fee = Poverty multiplier Person #1 not indigent Fine $ 625 Restitution $ 30 Court costs $ 180 SUBTOTAL $ % fee $ 209 GRAND TOTAL $1,044

8 Case Study: How Poverty Changes the Outcome of a Case Collection fee = Poverty multiplier Person #2 indigent Fine $ 625 Restitution $ 30 Court costs $ 180 Indigent defense fee $1,200 Jail fees $2,100 ($70 per day) SUBTOTAL $4,135 25% collection fee $1,034 GRAND TOTAL $5,169 (almost 500% increase)

9 The Faces of Court Debt R.M. a nursing home resident whose brain injury left him in a vegetative state, nevertheless threatened with incarceration through his guardian for failing to turn over his entire social security allotment to pay off decades-old court debt. E.J., a disabled woman who was threatened with jail and driver s license suspension due to owing to indigent defense fees owed to the state. K.F., a single mother whose debt for indigent defense fees based on a spurious contempt action brought by her ex-husband was deprived of the ability to drive her vehicle and provide for her young children.

10 The Faces of Court Debt J.E., a victim of domestic abuse forced to repay the state for attorney fees to defend against meritless contempt brought by her abuser in her own protective order, without due process of law. C.F., a parent in a non-criminal juvenile action, went into foreclosure because she could not afford both her mortgage and her payment towards her court appointed attorney fees, which were both assessed and collected without regard to her ability to pay. J.A., an immigrant from the South Pacific who paid his court debt twice over due to multiple agencies collecting the same debt from him multiple times.

11 The Faces of Court Debt E.S., a Liberian parent forced to choose between sending a remittance to Liberia to reduce chances of her mother contracting Ebola, and repaying a court appointed attorney fee established without due process of law. B.N., a low-income worker whose young family faced eviction and utility shut off due to an unlawfully high rate of garnishment for court debt, despite the overtime hours he put in. A.S., a low-income entrepreneur whose private contractor child care income was illegally offset in its entirety to pay court debt.

12 The Faces of Court Debt D.B. a single mother just re-entering society after a period of incarceration, who was still homeless despite working 40 hours per week due to illegal garnishments that reduced her paycheck to as little as 19% of gross wages. J.W., a single disabled mother, whose sole source of income was $720 per month in disability income, was assessed over $40,000 in defense fees from a non-criminal juvenile case in which she prevailed and immediately denied driving privileges when she failed to pay the entire balance.

13 WHAT YOU CALL IT MATTERS Terminology such as fines and fees is carelessly used, not just by laypeople but also by lawyers, policymakers, and judges. The type and purpose of the debt is extremely important to understand the situation. Many types of court debt are more incident to indigence than culpability.

14 Court Debt in Detail - Negative consequences of court debt 1) Incarceration debtor s prison Spikes in contempt for 2008 and 2015, but Probation revocation none, but 2) Judicial garnishment By prosecutors or private collectors Debtor s exemptions issues 3) Administrative garnishment By the Department of Revenue

15 Negative consequences of court debt 4) Offset of state benefits, bail, appeal bonds Tax refunds, vendor payments, etc. Appearance bonds and appeal bonds Some benefits exempt, but $13.9M collected in ) Vehicle registration & licenses No real way to address ability to pay 6) Driver s and professional license holds Limited process LRP plans, professional license appeals One step / two step process

16 Negative consequences of court debt 7) Denial of relief No expungement No discharge from probation No completion of deferred judgment No reinstatement of citizenship rights No participation in drug court

17 Effects go beyond the debtor Collection of court appointed attorney fees implicates basic issues of access to justice. Offset of bail and civil appeal bonds heightens barriers to accessing justice Court debt destabilizes families & communities. DOJ report on Ferguson (and subsequent lawsuit) provides a cautionary tale Ferguson s system was not unusual. Local incentives create the capacity for the same conflicts of interest.

18 Amount outstanding 6/2016: over $700 M Over four times amount from 1998 When traffic is excluded, 31% of this is PD fees. Does not include victim restitution, jail fees

19 Iowa Court Debt Timeline The rules of collection will depend upon who is collecting the court debt. Clerk of court (0 30 days) Private collection agency ( days / days) County attorney [some counties] (90 days +) Possible to have different entities collecting different debts.

20 Level 1: Clerk of Court First stage, until the debt becomes delinquent Less positive aspects $50 dollar minimum retained $300 minimum for payment plan eligibility Language maybe limiting ability to modify plans Inaccurate terminology Inaccurate notice of potential collection surcharges

21 Level 2: County attorney Almost 50 county attorneys have filed a notice of full commitment, all have developed their own policies. WHEN INVOLVED: In county attorney counties, after 90 days not paid License Reinstatement Programs (LRP) under B POWERS: Judicial garnishment of wages & accounts Jailing for contempt (in limited cases)

22 Court Debt in Detail

23 Level 2: County attorney Incentives for the county Under threshhold State 72%, county 28% Over threshhold State 67%, county 28%, county attorney 5% Total collected in FY $16M Four counties hold more than $50 million in court debt

24 Debt held by counties, FY 2015

25 Level 2A: Private collection agency Currently Linebarger, Goggan, Blair & Sampson, LLP (Texas) WHEN INVOLVED: 30 days after assessment, if debtor defaults POWERS: Statute gives broad powers Currently send dunning letters and garnish wages & accounts Immunity to debt collection laws questionable 25% surcharge added upon referral

26 COURT DEBT: PROBLEMS Data where is it? Ability to pay Boilerplate Ability to pay TBA Later assessments of appellate defense fees Agreements waiving rights Expungement / restoration of rights Offsets benefits, refunds, bail Garnishment amounts & notice Illegal garnishment notice provisions Incarceration (or threats) Payment plans Separation of powers / unbalanced incentives

27 Debtor s Prison Practices and New Model Bench Card U.S. Supreme Court: Bearden v. Georgia, 461 U.S. 660 (1983) Tate v. Short, 401 U.S. 395 (1971) In Iowa: State v. Dudley, 766 N.W.2d 606 (Iowa 2009) Limited by State v. Olsen, 794 N.W.2d 285 (Iowa 2011) State v. Sluyter, 763 N.W.2d 575 (Iowa 2009) State v. Snyder, 203 N.W.2d 280 (Iowa 1972) MOU between Iowa Judicial Branch and County Attorney Association (2016) ACLU National Report:

28 Debtor s Prison Practices and New Model Bench Card continued

29 QUESTIONS? ALEX KORNYA Iowa Legal Aid th St. Suite 230 Des Moines IA , Ext 1644 akornya@iowalaw.org RITA BETTIS ACLU of Iowa 505 Fifth Ave., Ste. 901 Des Moines, IA rita.bettis@aclu-ia.org