Win Or Lose, You Pay

When the Seventh Circuit held it constitutional to impose a $30 booking fee on every person arrested, guilty or innocent, because it was “rational” to collect the cost of processing an arrest from the person who chose to be arrested, only one judge refused to get the idea that innocent people are arrested too, and it was facially absurd to make them pay for the privilege.

This should be a simple case. The village’s “booking fee” ordinance is unconstitutional on its face. It takes property from all arrestees—the guilty and the innocent alike—without due process of law. The deprivation occurs at the time of arrest, immediately and finally. It occurs based on only the say-so and perhaps even the whim of one arresting officer. By no stretch of the imagination can that be due process of law.

That, of course, was from Judge David Hamilton’s dissent.  But lest anyone suspect that there is something in the water in Wisconsin, as opposed to, say, Flint, Michigan, the same insanity appears to infect Texas as well.

Seventeen-year-old Malik Walker was in a 7-11 convenience store one day when police stormed in and arrested a group of younger boys from his high school. They had just run away from a burglary and into the store, and while police found nothing on Walker, according to his court-appointed attorney, they cuffed him too.

Although Walker’s case was ultimately dismissed, criminal charges come with a high cost in Harris County.

After his mom paid $1,000 to bail him out, here is what this unemployed high school senior had to do so his bond wouldn’t be revoked and he wouldn’t get tossed back in jail: random drug and alcohol testing, a 7 p.m. curfew every day, and proof that he reached out to 25 businesses every week for a job. Walker would also have to pay $60 every month to the Harris County Community Supervision and Corrections Department (a.k.a. the probation department).

On top of all these pretrial probation-like conditions, a judge also asked Walker to pay $200 per month to offset court-appointed attorney costs — a fee that, at least in Walker’s case, should never have been assessed in the first place, according to lawyers who have reviewed his case.

But once his case was dismissed, and the judge realized that this was all a big, ol’, silly mistake, and the cops made a boo-boo, and Walker, as a high school student, couldn’t possibly have assets anyway, she laughed at the foolishness of it all, ordered all monies be refunded and wished him well, right? Come on, Texas.

When we looked at 17-year-old Walker’s financial affidavit, he indicated he had zero income, no bank account and no job, and that his mom paid all the bills. Walker’s attorney, Murray Newman, told his client not to pay.

“Judge was not amused with me, but I said, ‘You tell me this high schooler without a job has any income to be paying that?’” Newman said. “That’s when she added the look-for-25-jobs-a-week part.”

There’s the obligation of Gideon, to provide a defense free-of-charge to the indigent, except Gideon offers no guidance on what indigency means.  After all, is there any reason why a healthy 17-year-old high school student without a pot to piss in shouldn’t be ordered to seek work and gain sufficient wealth to repay the cost of his defense?  Well, yeah, there actually is a good reason. The cost of his defense, not to mention the piling on of collateral costs because it’s expensive to arrest people, mistakenly or not, shouldn’t be his problem at all because his case was dismissed.

As it turns out, the judge in Harris County admits that while she orders payment, she doesn’t follow up with a contempt order to jail someone who had the charges dismissed but failed to pay the costs imposed.  It’s more a fear and coercion thing.

As Harris County Chief Public Defender Alex Bunin put it: “It’s like if a policeman came up to you on the street and ordered you to go home and clean your room. You could, but you don’t have to.”

Of course, the police officer could beat the living crap out of you and arrest you for resisting his boot in your face, at which point Judge Brown would charge you for the cost of a sleeping lawyer, if need be.

So Texas and Wisconsin?  Hardly. Meet Judge Amanda Sammons from lovely Jacksboro, Tennessee.

Assessing a small fee against indigent defendants who apply for or use the services of a public defender is nothing new.* Lots of places do it, and although there’s something quite problematic about the government charging poor people for something to which they’re constitutionally entitled, it does seem somewhat unusual for people to be denied a public defender altogether for failure to pay. As Sammons makes clear, however, the deterrent effect when it comes to people asserting their right to counsel is just the obvious problem with such fees. Sammons’s brand of injustice is something perhaps even the strongest proponents of Tennessee’s appointed counsel fees probably couldn’t have imagined.

What makes Sammons special is that she charged an indigent woman arrested for possession of prescription drugs for a lawyer who was neither needed nor used, as she had, and within a week of arrest proved she had, a prescription.

But Sammons chose to put the screws to her anyway.  Then again, Tennessee is doing everything possible to cheap out on indigent defense, because, well, it just doesn’t want to pay.

For those of us who come from states where this isn’t done, the absurdity of charging the wrongfully arrested — whether mistakenly or otherwise — is manifest. And it should be noted that the burden is carried by those incapable of doing much about it. It’s not like they can hire a lawyer to fight the imposition of indigency fees. It’s one of those things about which the rest of us ought to know, and about which the states and judges involved deserve to be shamed.

Now go clean your room. Or else.

*Imagine how cool it would be if the ABA found a few minutes in its busy schedule of obsessing over diversity and inclusiveness to address the imposition of costs and fees on indigent defendants. You know, law stuff.

10 comments on “Win Or Lose, You Pay

  1. Jason Clark

    Some counties in Georgia impose pre-trial supervision for some misdemeanor arrests. Supervision = report once a month and pay 35.00, they will also remind the person to go to anger management, if applicable. If it is a domestic violence charge (criminal trespass, which can include damaging your own coffee table or picture frame, battery, etc.) the person on supervision (probation?), must also attend anger management at their own expense, costing roughly 350.00 to 550.00. All of this takes place before trial and anyone having been found guilty. No money is refunded if the case is dismissed or person is acquitted. Further, these bonds and conditions are set at the jail, before the person has counsel appointed. Even if a retained lawyer shows up, it is not actually a bond hearing, so they either accept the conditions, or would theoretically have to wait a week or two to get an actual bond hearing. For an alleged misdemeanor offense. Last case I framed to take this practice up on appeal, the prosecutor dismissed before I could get a ruling on the merits.

  2. bmaz

    The ABA, yeah. But NACDL and a plethora of supposedly other benevolent lawyer groups.

    When legal twatwaffles go out and talk about “Reinventing” the law, where are they on this crap??

  3. charles platt

    Does New York City still have the practice of charging a percentage of bail money as a fee for its service of holding the money? I recall bailing someone out for $10,000. After my bank records had been requested and inspected by a prosecutor to determine whether my money was likely to have been earned lawfully (she said the city could refuse it if I couldn’t demonstrate that the sources were legitimate), the bail was reluctantly accepted, the defendant was released, and a month or two later, all charges were dropped. Imagine my surprise when I received a bail refund less, I think, 6 percent. Adding insult to injury, the percentage had increased from, I think, 4 percent, while the bail was being held. When I complained that if I was going to be charged any holding fee at all, it should be the amount that prevailed when the bail was accepted, not when it was returned, the response was what you would expect: indifference.

  4. marc r

    The innocent indigents have a litany of illegal fees: $2/night bed charges at county jail; $50 pd fee; pre-trial ankle monitoring fees and pretrial “probation” fees are all per se illegal. Judges and the government generally see it as a benevolent alternative to spending pre-trial confined in jail, and, of course, the bed fee only applies if you put money into commissary they deduct the big fee then.

    I think plenty of individual attorneys attack these injustices and then the courts just dismiss those fees or the prosecutors waive them, rather than any actual argument be heard. I think it would have to be class status to get anywhere and the ABA writing articles about this is preferred over whatever legal rebel it is they champion that week but still just the ineffectual ABA.

    1. SHG Post author

      Why does a post like this make people feel it’s an invitation to give their examples? Do the examples not suffice to make the point, or will your head burst if you don’t get your examples out?

      1. OEH

        I think it’s the latter. Giving examples is pretty fun. Plus some of us aren’t dedicated enough to have our own blog.

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