Mimesis Law
27 June 2017

Arkansas’ Unconstitutional Collections Court

August 25, 2016 (Fault Lines) — Courts are not collection agencies.  While states may have laws prohibiting writing bad checks, the criminal justice system isn’t structured for the purpose of helping businesses recover funds when a person bounces a check.  Yet a class action lawsuit filed Tuesday in U.S. District Court for the Eastern District of Arkansas alleges Sherwood, Arkansas’ “Hot Check Court” acts as a “byzantine” debt collection service, leaving indigent defendants with thousands in fines and potential incarceration without due process or an inquiry into their ability to pay.

The fifty-eight page lawsuit, filed on behalf of four plaintiffs, details a bizarre procedure for Sherwood’s “Hot Check” proceedings, most of which only last “two to three minutes.”  If a person is served with a notice to appear in Sherwood’s “Hot Check” division, they must wait in a line before seeing Judge Milas Hale in proceedings that are closed to the public.  Before entering the courtroom, the suit alleges each defendant must sign a “Waiver of Counsel” form with their personal information and signature.

Once inside the Hot Check Court, Judge Hale presents each defendant with a copy of the alleged bad check and asks the party if they wrote it. An affirmative answer is treated as an admission of guilt and recorded as a guilty plea. If a party denies writing the check, the suit alleges, Judge Hale compares the signature on the “Waiver of Counsel” form to the signature on the check and attempts to elicit an admission of guilt.

Once a conviction is entered, the “guilty” party is placed on probation, ordered to pay restitution, and then assessed a total of $410 in fines, fees and court costs. Payment is due on the spot. If a defendant asserts an inability to pay, no inquiry is made into alleged indigency or alternative methods of restitution discussed. Parties are simply directed to the Hot Check Division Clerks to be placed on a “payment plan” determined by the court’s clerks without any inquiry into income, means, or ability to actually make the scheduled payments. Each defendant is also placed on the Hot Check docket one to three months down the road for a “review” hearing to determine if they are in compliance with the court’s orders.

These “review hearings,” according to the lawsuit, are treated as “a new, separate, stand-alone criminal case” allowing the court to impose new fines and fees if a defendant doesn’t make a payment on time or fails to show up for the hearing. Miss a payment or fail to show for your “review hearing” and an arrest warrant is issued.

Sherwood police, according to the suit, track individuals to their homes and tell them they will be arrested unless they can pony up some dough on the spot to the officer or make a payment with a credit card to the Hot Check Clerk over the telephone.  If you make the payment, the “arresting officer” gives you a court date. Fail to provide the requested sum and you’re off to jail, pursuant to Arkansas Code Annotated § 5-4-203, the “Failure to Pay” statute repealed in 2009.

It is an unclassified misdemeanor in Arkansas to write a bad check, and the alleged $125 fine assessed against each party convicted of a hot check offense technically falls in the appropriate range for the first or second offense. If a party claims an inability to pay the fine, Arkansas law requires the court make an inquiry into the party’s ability to pay and then issue a finding on whether the fine can actually be paid. The suit alleges these inquiries don’t take place, violating a defendant’s due process rights, and that Sherwood’s Hot Check Court’s payments and collections scheme constitutes an “illegal exaction” under Article 16, Section 13 of the Arkansas Constitution.

Judge Hale doesn’t see his practices as violating any law or procedure. According to an email sent to ABC News when requesting comment, he’s actually quite lenient in his court when it comes to jailing people that can’t pay thousands in fines over a $15 check.

“We do not run a so called ‘debtor’s prison’ in Sherwood,” Hale said…”If a defendant pleads guilty, or is found guilty, of writing a hot check we set up a payment plan. It is only after the third or fourth time that they fail to comply with a court order that we incarcerate.”

Hopefully Judge Hale is actually making inquiries into whether jailed defendants in his court are willfully refusing to “comply,” or if they actually lack the funds to pay. The Supreme Court held in Bearden v. Georgia revoking probation and imposing a jail sentence was inappropriate if a party truly lacked the means to pay fines and restitution. If other methods were available to meet a State’s needs for punishment and deterrence, a sentencing court should consider those. The rule articulated back in 1983 was “the State cannot impos[e] a fine as a sentence and then automatically conver[t] it into a jail term solely because the defendant is indigent and cannot forthwith pay the fine in full.”  That sounds suspiciously like what Judge Hale’s “Hot Check Court” in Sherwood is doing, if Tuesday’s filing is correct.

Jailing poor people for the sole offense of being poor flies in the face of federal law, the U.S. Constitution, and Arkansas’ Constitution. By rubber-stamping convictions and imposing jail sentences for people who even unknowingly write a bad check in Pulaski County, the Hot Check Court violates the rights of those who are without the funds to pay a $15 check to an egregious degree deserving of Federal scrutiny. No response has been filed by the defendants in the Federal suit as of publication, but Justice Black’s declaration in 1956’s Griffin v. Illinois applies to this case quite convincingly.

There can be no equal justice where the kind of trial a man gets depends on the amount of money he has.

Hopefully, in the near future, the Sherwood Hot Check Court’s website will no longer see a need to boast of their 85% collection rate service for their “clients” at “no cost,” and the defendants facing “hot check” charges will actually receive equal justice.

4 Comments on this post.

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  • TMM
    25 August 2016 at 11:28 am - Reply

    The bigger problems than the potential imprisonment for debt seem to be:

    1) The closed courtroom (violating the right to a public trial);
    2)The mandatory waiver of counsel (violating the right to counsel);
    3) The failure to advise them of the right to remain silent;
    4) The failure to advise them of the right to plead not guilty;
    5) The failure to advise them of the right to trial at which the city would have the burden of proof (including proving that there were no funds in the account to pay the check at the time that it was written)
    6) Not requiring any testimony from any witnesses against the defendant.

    • CLS
      26 August 2016 at 11:41 am - Reply

      Because being in jail over thousands in dollars of fines you can’t pay doesn’t suck all that bad when compared to your laundry list of offenses.

  • Orin T
    25 August 2016 at 7:16 pm - Reply

    If as Justice Black wrote: “There can be no equal justice where the kind of trial a man gets depends on the amount of money he has.” Then given the over worked under staffed Public Defender offices and the fees charged by top notch attorneys there is not equal justice in America.

    • CLS
      26 August 2016 at 11:42 am - Reply

      Adequate funding of indigent defense would be nice, but that has nothing to do with the substance of this post.