Mimesis Law
21 September 2019

The Lessons Of Judge Ed Spillane, Better Late Than Never

Apr. 18, 2016 (Mimesis Law) — In a post a few weeks ago about “pay-or-stay” sentences,  defendants who owe the court money are sent to jail because they can’t afford to pay. A recent article in the Washington Post by Ed Spillane, Chief Judge of the Municipal Court of College Station, Texas, show that things aren’t all bad.

As a municipal judge in College Station, Tex., I see 10 to 12 defendants each day who were arrested on fine-only charges: things like public intoxication, shoplifting, disorderly conduct and traffic offenses. Many of these people, like Melissa, have no money to pay their fines, let alone hire a lawyer.

There’s another way, and I’ve been experimenting with it in my own courtroom.

His experiments are mostly common sense, and range from things like giving community service in lieu of money or jail time, giving people a longer time to pay, and allowing children in his courtroom so that parents can still come to court when they can’t find or afford babysitting.

He also describes a “warrant amnesty” program, where the Court makes extraordinary efforts to contact defendants and get them into court to resolve their cases. Lo and behold, this works wonders:

It’s amazing how many defendants show up once they know they won’t be immediately arrested when they step into the courtroom — we clear about 600 cases during each amnesty period.

Judge Spillane refers to a Buzzfeed investigation in which a few of his fellow Texas judges professed ignorance of the decisions in Tate v. Short and Bearden v .Georgia, which forbids locking people up for purely financial reasons, absent a finding that the failure to pay was deliberate.

El Paso city court Presiding Judge Daniel Robledo also said that judges were under no obligation to ask people about their finances [.]

When informed that Texas law says the opposite — that judges consider and document indigency for every defendant facing jail for unpaid fines — Robledo replied, “That’s a good point. That’s a good point. That’s a very good point.”

Way to stick to your guns there, Judge Robledo. But even more disturbing than a judge being so ignorant of the law is the effect it has on the attitudes of the defendants. Judge Spillane describes such a case from when he first took the bench:

In my first week as a municipal court judge, in 2002, I visited the jail and, as part of the arraignment process, met with a 27-year-old unemployed woman named Amy V., who had pleaded guilty to driving without insurance, driving with a suspended license and two failure-to-appear charges. She stood up, looked me in the eye and informed me that she would never pay her $1,500 fines. (She also suggested that I was interested in the money only so I could buy myself a steak dinner.)

This is a one of the most common complaints among defendants, especially indigent defendants: “They just want the money.” In some cases, this is true, though it’s generally not about dinner, steak or otherwise. It’s because courts and local governments are using punitive fines as a revenue source.

“You’re not supposed to be funding your operation from fines or fees.” But, she says, “judges want to have decent facilities. They want to have support staff. It may very well be that local funding sources . . . have said, ‘You’ve got to pay for your own keep.’ That’s not the way it should be.”

It’s sad commentary that in 2016, we still need a reminder that “that’s not the way it should be.” Still, it appears that some people with the ability to effect change are starting to take notice. Judge Spillane is one. Also, last month, the Justice Department issued a “Dear Colleague” Letter addressing many of these issues, an example of the Justice Department writing to colleagues to do good rather than evil.

The Dear Colleague letter also addresses one of the most disgusting practices in the legal system, the privatized enforcement of debt collections:

In many such jurisdictions, probation companies are authorized not only to collect court fines, but also to impose an array of discretionary surcharges (such as supervision fees, late fees, drug testing fees, etc.) to be paid to the company itself rather than to the court. Thus, the probation company that decides what services or sanctions to impose stands to profit from those very decisions.

The appointment of a private probation company with a pecuniary interest in the outcome of its cases raises similarly fundamental concerns about fairness and due process.

Ya think??!?

It’s tempting to draw the wrong conclusion from the mistreatment of poor people. It’s tempting to believe that these things happen because judges and prosecutors are these cartoonish Dickensian monsters, taking veiled (or even overt) pleasure or profit in making other people suffer. While that happens on occasion, it’s (thank God) pretty rare. What’s happened, as it has time and time again, is that the system has gotten its incentives out of whack.

As we all learned in the first week of law school, the purposes of criminal law are rehabilitation, deterrence, punishment and incapacitation. Not operating revenue. Not funding for facilities and staff. Not bonuses for privately employed probation officers. Certainly not for steak dinners. Judge Spillane seems to have realizes this, and is governing himself accordingly. Now, if only everyone else could follow his example.

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