The new debtors’ prisons
If you are poor, don’t get caught speeding
IN LATE 2010 police in Childersburg, Alabama ticketed both Kristy and Timothy Fugatt for driving with expired licence tags. They were fined $148 each, plus another $198 for Mrs Fugatt, whose licence had expired. They could not afford to pay, so they were placed on probation under the supervision of Judicial Correction Services (JCS), a private company that manages probationers for roughly 200 misdemeanor courts in the south-eastern United States.
JCS also charged each of them a $45 monthly service fee. When they fell behind on their payments, they were charged more fees and threatened with jail. In February 2012 they claim that a Childersburg policeman arrested them at their home, threatened them with a Taser, told them their children would be placed in state care and took them to prison. They were released only after relatives brought $900 to the Childersburg jail. (Robert McMichael, the head of JCS, refused to comment on any of these allegations.)
Monthly charges to private-probation companies are just one of a growing array of fees levied by America’s criminal-justice system. Such fees are distinct from fines, imposed to punish or deter. Their aim is to make wrongdoers cover some of the costs of the system that punishes them.
Another law for the poor
For example, a 2010 report by the American Civil Liberties Union (ACLU) found that fees and fines covered two-thirds of the operating budget of the Orleans Parish criminal court in Louisiana. That is the appeal of private-probation firms: small fines often go unpaid because local governments cannot afford to chase every speeding ticket. JCS claims that without officers overseeing probation, only 30% of offenders complete it; with JCS’s services that rises to 70%. Even more appealing to cash-strapped municipalities, private-probation companies offer their services at no cost to the taxpayer. Instead, boasts JCS, “Supervision is completely offender-funded.”
Defendants who cannot pay fees upfront are put on payment plans, which often come with start-up and monthly administrative fees. Many of these fees are small, but for poor Americans they impose an additional burden that can last long after a judicially-imposed sentence has ended. A 2010 study by the Brennan Centre for Justice, a law and public-policy institute, found that at least 13 of the 15 states with the largest prison populations allowed probation to be extended beyond the judicially-imposed terms for non-payment of criminal-justice debt. A judgment handed down in July 2012 against the town of Harpersville, Alabama, which hired JCS to manage its misdemeanour probation, found that fees could turn a $200 fine into a 41-month-long, $2,100 ordeal.
That same judgment accused Harpersville of operating a “debtors’ prison”, though the judge noted that “a more accurate description of the Harpersville Municipal Court practices might be that of a judicially sanctioned extortion racket.” Harpersville, like many other places, jailed people who failed to pay probation fines and fees—although the cost of imprisonment often exceeds the costs for which they are liable. In 2010 North Carolina’s Mecklenburg County spent over $40,000 jailing people for non-payment of criminal-justice debt, and collected just $33,476 from them. Courts in Orleans Parish routinely offered defendants the choice of 30 days in prison or $100 in fines, even though the city had to pay the parish sheriff $22 per day for each inmate it sentenced, and the federal appellate court for the circuit that includes Louisiana found such “fine or time” sentences illegal.
That Brennan Centre study found that nine of the 15 American states with the largest prison populations permit “collection fees” on criminal-justice debt, which are often payable to private firms. Only one of the 15 (Texas) exempts penniless defendants from additional collection fees.
All this occurs routinely, though the Supreme Court ruled in 1983 that before a court jails someone for failing to pay a fine or fee, it must first ensure that his failure to pay was wilful—that he could have paid but chose not to. Jailing someone because he cannot pay violates the 14th Amendment’s Equal Protection Clause. Similarly, 13 of the 15 states studied by the Brennan Centre charge defendants public-defender fees ($50 for a misdemeanour and $100 for a felony defence in Florida; in Virginia, as much as $1,235 for some felonies), even though the Supreme Court ruled in 1963 that the Sixth Amendment required courts to provide lawyers at no charge for indigent defendants.
In some states people with outstanding criminal-justice debt cannot vote. In others they lose public benefits such as food stamps and housing assistance. Some states suspend driving licences, making it harder for people to get to the jobs they need to do to pay off their debt. And beyond that, as Eric Balaban of the ACLU notes, such fees create “a two-tiered system of justice, in which the wealthy can satisfy the system quickly, while a poor person charged with the same offence can face years of penalties.”
I have in my office a framed print of the classic New Yorker cartoon: “You have a pretty good case, Mr. Pitkin. How much justice can you afford?” I often find myself referring to the cartoon when talking to prospective clients.
For one thing, the joke is a light-hearted way to broach the subject of fees. This can be a difficult or awkward subject, yet it is critical that prospective clients understand the fees involved in a representation. Whether you are handling a matter on a contingent fee, a flat rate or hourly basis, or otherwise, clients need to know that nothing comes for free. If you can’t have a frank and detailed discussion about your fees and expenses, you inevitably will have trouble collecting. For lawyers who are opening a new solo or small firm practice, understanding the perils of working for free is one of the hardest but most important lessons to learn.
The joke also is helpful because many clients appreciate a lawyer who is self-deprecating and doesn’t take himself too seriously. I have found that acknowledging the negative stereotype of lawyers, and why the stereotypes justifiably exist, is helpful to gaining a client’s trust. Rather than tiptoe around the elephant in the room, I prefer to expressly acknowledge the profit incentive I have whenever I recommend a certain course of action. I like to think that gives me more credibility. “Yes, I am recommending a strategy that is going to cost a lot of money in legal fees over the next several months. Here’s why I believe that strategy is in your best interest….”
Although most sophisticated clients know better, others can’t help but distrust all lawyers as greedy con-artists. A lawyer who recognizes and appreciates this stereotype is better positioned to allay client fears by confronting them directly. Clients understandably worry that they’re going to get ripped off. I acknowledge that and explain to clients what steps they can take to ensure they don’t get overbilled by me or any other lawyer. Those steps only go so far, however, and ultimately the client has to trust the lawyer in what I call the “look you in the eye” moment, or moment of truth.
The joke’s phrase “how much justice” also invites a discussion about how justice is relative. Every litigation client wants to win, but they don’t always immediately understand that winning is relative. I find it helpful to talk to the client about what winning really looks like in the matter at hand. For a civil defendant, winning might mean a dismissal of the complaint with prejudice. Winning might mean a reasonable settlement. Winning might even mean a judgment for plaintiff, but for less than a certain amount or upon certain acceptable conditions. Winning might mean deferring resolution for a certain amount of time.
Finally, the joke is helpful in leading a discussion about how there often is more than one viable strategy for handling any given matter. The serious point of “how much justice can you afford” is that different strategies, and desired outcomes, require different budgets. The joke is funny because it obscures the relative nature of “justice.” In reality, it is appropriate to ask “how much do you want to spend” when considering the strategy and result you want to try to obtain.
Even obtaining the best case result — for example, a dismissal with prejudice — entails a cost in terms of time, energy and fees. Maybe you collect or maybe you pay. But since it costs a lot to win, and even more to lose, clients need to carefully consider their strategic options by carefully weighing their choices. We chuckle, but I find it helpful to ask, “how much justice can you afford?” Clients seem to appreciate it when I acknowledge that it might not make sense to win the case at a cost that exceeded the prospective liability. In other words, “we can win, but it would cost you more than it would cost you to settle.” Clients generally don’t like hearing that, but they do appreciate the candor.
I’ve explained before that I try
to work closely with our clients to understand their goals, their tolerance of risk, and their budget constraints. We urge our clients at all times to consider their exposure, risk of loss, and attorney fees they will incur to achieve their goals. Our case assessments necessarily consider these factors, as do our strategic recommendations.
Sometimes clients will respond to that by pushing back and insisting that they want to win “at any cost.” “Tell me the cost, I can pay,” they proclaim. To that, I usually joke “music to my ears!” Again, I hope that acknowledging my own economic interest helps build trust.
Rather than leaving no stone unturned and pursuing an undefined victory at any cost, client-centric firms can instead recognize that justice is relative, and always comes at a price. They can contrast their approach with a sometimes predictable Biglaw litigation model. Too often, firms follow a rather consistent litigation playbook. They insist that the first step in every case is always to gather and review every conceivably relevant document, often with a team of junior attorneys. They insist on propounding kitchen-sink discovery, obtaining and reviewing every conceivably relevant document from the adversary, again billing every step of the way.
Admittedly, especially in high stakes cases, this may well be the right approach. But not always. More creative firms and boutiques sometimes have more flexibility in designing litigation strategy. I’ve written before how they can sometimes capitalize on this by exploiting their adversary’s predictable litigation formula.
Attorney jokes will never go away, thankfully. As a profession, we certainly deserve them. But attorneys who are willing to view the world through the eyes of their clients can gain trust simply by asking, “how much justice can you afford?”
COVINGTON, Ky. (AP) — Jurors were ordered to try again Friday after telling a judge they couldn’t reach a verdict on a defamation lawsuit filed by a former Cincinnati Bengals cheerleader against a gossip website that featured lewd posts about her.
U.S. District Judge William Bertelsman sent the jury home Thursday evening after several hours of deliberations and instructed them to return in the morning. If the jurors ultimately can’t agree on the lawsuit filed by former cheerleader and high school teacher Sarah Jones, the case would have to be tried again with a different jury.