Lawsuit Challenges Arkansas City and County Practice of Arresting People Over Court Fines Associated with Bad Checks

An effective policy of debtors prison said to violate the federal constitution and various parts of Arkansas' state constitution.


The city of Sherwood, Arkansas, rides hard on people who write bad checks in Pulaski County. Even a $15 bad check can, and often does, lead to thousands owed to the county in fines and fees, and lots of jail time. This practice is unconstitutional, argues a lawsuit filed today in U.S. District Court for the Eastern District of Arkansas against Sherwood, Arkansas, Pulaski County, and Judge Milas Hale III.

Ell Brown/Foter

The suit was jointly filed by the Lawyers' Committee for Civil Rights Under Law, Morrison & Foerster LLP and the American Civil Liberties Union of Arkansas.

The city, county and its officers have a regular practice of imprisoning people for court fees and fines without ascertaining whether the jailed can actually afford to pay them, the suit argues, and without proper provision of legally required counsel or an actual public trial.

Article 16, Section 13 of the Arkansas constitution is thus implicated, they argue, in addition to the 6th and 14th Amendments of the federal constitution. (That provision of the state constitution states that "Any citizen of any county, city or town may institute suit, in behalf of himself and all others interested, to protect the inhabitants thereof against the enforcement of any illegal exactions whatever.")

Article 2 Section 16, of the Arkansas constitution against imprisonment for debt, is also being violated, the suit alleges (although my read of that section mentions only civil actions, not criminal ones, and leaves an out for "fraud" which I imagine a bad check could be interpreted as. Note: I am not a lawyer.)

The "hot check" court proceedings, as the lawsuit alleges, are kept closed to the public other than defendants and counsel. No recordings or transcripts are made, nor does the clerk even create a record of who shows up in court.

Defendants are forced, the suit alleges, to sign a waiver of counsel as a condition of entering the courtroom, without having their rights explained to them. The four plaintiffs, according to my read of the filing, have written bad checks that likely amount to less than a thousand (one of the plaintiffs did not have the specific amount listed, so it's possibly higher, but the ones who did have their amounts specified amounted to less than $600). Between them they face nearly $15,000 in court fines and fees and have spent a combined over 200 days in jail just for being too poor to pay these fees, costs, and fines.

Each conviction in this hot check court, no matter the size of the check, gets you an instant $400 in addition to any restitution to the person you wrote the check to. If you don't pay instantly, you must show up in the future for "review hearings" over whether you are meeting a payment plan. No assessment of ability to pay is made. The accused are not told of any possible alternatives, such as community service.

Existing Arkansas code says that assessments of ability to pay must be part of "assessment and collection of all monetary fines." The suit alleges Sherwood and Pulaski County are violating that code.

Any failure to pay or appear at those "review hearings" are used as a pretext to create a whole new set of criminal proceedings and fines against hot check defendants, which gets you at least another $300 in fines. A whole new series of "review hearings" creating an infinite loop of new chances to hit the defendants with new charges for failure to pay and failure to appear are then set in motion on the new charges.

The court will also regularly throw people in jail during this process, again with no inquiry into ability to pay. The suit asserts that hundreds of other people besides the named defendants have faced this pattern of behavior and jailing from the city and county and considers itself a class action suit on all of their behalf (as well as on the behalf of any Arkansas citizen having their tax dollars misused by this pattern of alleged misbehavior on the part of city, county, and court).

The hot check division claims to issue over 35,000 warrants related to bad checks a year. In fiscal 2015, over $2.3 million was collected in court fines, over 11 percent of the city's total general funds budget.

An emailed press release sums up their purpose and goal in the suit:

"The resurgence of debtors prisons across our country has entrapped poor people, too many of whom are African American or minority, in a cycle of escalating debt and unnecessary incarceration," said Kristen Clarke, president and executive director of the Lawyers' Committee for Civil Rights Under Law. "The Sherwood District Court epitomizes the criminalization of poverty and the corrupting effect of financial incentives on our local courts…."

"Across the country, the cost of debtors' prisons in human lives and public resources is enormous," said ACLU of Arkansas Executive Director Rita Sklar. "When the criminal justice system serves as unscrupulous debt collectors for the public and private sector, without regard to due process, the government is not only violating people's rights, it is facilitating the never-ending cycle of poverty: threatening the poor with incarceration for failure to pay bills they can't pay, keeping them from jobs that may help them pay their bills, and stacking up fines that dig the poor into an even deeper hole. We need open court proceedings and public accountability, fair, rational laws that take into account defendant's ability to pay and prohibit incarceration for failure to pay, and we need to stop raising money on the backs of the poor."…

The lawsuit also makes a claim under Arkansas' "illegal exaction" law, which allows taxpayers to sue for a misuse of public tax funds. Philip Axelroth, a resident of Sherwood, represents himself and other taxpayers in condemning Sherwood and Pulaski County for their role in perpetuating the illegal debtors' prison scheme.

The suit seeks to have the suspect practices declared unconstitutional, to have them cease the practices, and to refund to the Arkansas citizens' funds misused by the city and county in pursuit of those practices under the "illegal exaction" law, as well as attorneys fees to the plaintiffs.

C.J. Ciaramella reported earlier today on the Justice Department objecting to keeping the poor locked up just for inability to pay bail.

I've reported before on how petty law enforcement practices can ruin the lives of the indigent. Earlier reporting about effective debtors prisons in these here United States.