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BEYOND FERGUSON: COMMUNITY-BASED OR CASH- REGISTER JUSTICE? GINKOWSKI, RICHARD A. Criminal Justice. Spring2018, Vol. 33 Issue 1, p14-22. 9p. 2 Color Photographs. Article MUNICIPAL government LAW enforcement MUNICIPAL courts FINES (Penalties) SOUTHERN Poverty Law Center The article reports that certain municipalities have turned to law enforcement and the courts to fill municipal coffers with the concurrent result often being cash-register justice that particularly and unconstitutionally impacts the economically disadvantaged. It mentions that court uses its judicial authority as means to compel the payment of fines that advance the City’s financial interests. It presents information on Southern Poverty Law Center (SPLC) which deals with municipal courts. 0887-7785 130198076 Criminal Justice Abstracts with Full Text

BEYOND FERGUSON: COMMUNITY-BASED OR CASH-REGISTER JUSTICE?

for most people, the only contact they will have with police and the courts will result from receiving a citation for a traffic violation or a municipal offense such as having an unleashed dog. With increasing pressure to balance budgets, some municipalities have turned to law enforcement and the courts to fill municipal coffers with the concurrent result often being “cash-register justice” that particularly — and unconstitutionally — impacts the economically disadvantaged. In other communities, municipal courts reflect a commitment to “community-based justice” that provides public safety and accountability while respecting the rights of defendants and diverting appropriate cases from the criminal justice system, freeing up scarce resources. This article, written by a suburban municipal court judge, discusses both the problem and one state’s model solution.

JUSTICE FERGUSON STYLE

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August 9, 2014, arguably is a watershed date in American criminal justice. That is the day 18-year-old Michael Brown was shot and killed by a police officer in the St. Louis suburb of Ferguson, Missouri, shortly after a robbery was reported nearby. The killing of an unarmed black teenager by a white police officer sparked days of rioting in Ferguson and calls nationwide for increased vigilance of treatment of minorities, including use of force, by law enforcement.

The following month, then Attorney General Eric Holder announced the Department of Justice (DOJ) would investigate not only Brown’s death but also the Ferguson Police Department. The federal probe concluded with no charges against the officer, who claimed self-defense (and was also cleared by a state grand jury), but nonetheless offered a stinging indictment not only of discriminatory police practices but also of a municipal court that functioned more as a cash register than a forum for justice:

Ferguson’s law enforcement practices are shaped by the City’s focus on revenue rather than by public safety needs. This emphasis on revenue has compromised the institutional character of Ferguson’s police department, contributing to a pattern of unconstitutional policing, and has also shaped its municipal court, leading to procedures that raise due process concerns and inflict unnecessary harm on members of the Ferguson community.

(U.S. DEP’T OF JUSTICE, INVESTIGATION OF THE FERGUSON POLICE DEPARTMENT 2 (2015) [hereinafter FERGUSON REPORT].)

Poring through thousands of pages of city documents and hundreds of interviews with city residents (and some police officers who complained of being pressured to write tickets), the DOJ investigation found that Ferguson “budgets for sizeable increases in municipal fines and fees each year, exhorts police and court staff to deliver those revenue increases, and closely monitors whether those increases are achieved.” (Id.) The investigation revealed numerous communications where city officials leaned on the police chief to increase revenue through enforcement and bragged when positive results were achieved. For example, in January 2013 the police chief wrote: “Municipal Court gross revenue for calendar year 2012 passed the $2,000,000 mark for the first time in history, reaching $2,066,050.” The city manager responded: “Awesome! Thanks!” (Id. at 13.) Even after Michael Brown’s death and while the federal investigation was underway, Ferguson’s city finance director vowed to use municipal enforcement revenue to plug an anticipated $1 million hole in the city budget. (Kate Smith, Ferguson to Increase Police Ticketing to Close City’s Budget Gap, BLOOMBERG NEWS (Dec. 12, 2014), https://tinyurl.com/ y89wnktu.)

This emphasis on “policing for profit” can be illustrated by a comparison of Ferguson, a St. Louis suburb with a population of 20,846 (67.4 percent African American), and the author’s community, Pleasant Prairie, Wisconsin, a Chicago suburb with 20,400 residents (2.5 percent African American). In 2013 — the year before Michael Brown was shot — Pleasant Prairie’s gross court revenue was $338,248. In Ferguson, it totaled $2,571,000. The DOJ concluded:

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Ferguson has allowed its focus on revenue generation to fundamentally compromise the role of Ferguson’s municipal court. The municipal court does not act as a neutral arbiter of the law or a check on unlawful police conduct. Instead, the court primarily uses its judicial authority as the means to compel the payment of fines and fees that advance the City’s financial interests. This has led to court practices that violate the Fourteenth Amendment’s due process and equal protection requirements. The court’s practices also impose unnecessary harm, overwhelmingly on African-individuals, and run counter to public safety. (FERGUSON REPORT, supra, at 3.)

The investigation excoriated numerous less than “user friendly” court practices, including:

“It is often difficult for [a defendant] in Ferguson to know how much is owed, where and how to pay the ticket, what the options for payment are, what rights the individual has, and what the consequences are for various actions or oversights.” (Id. at 45.)

Information provided “is often incomplete or inconsistent​ . For example, speeding tickets often fail to indicate the alleged speed observed, even though both the fine owed and whether a court appearance is mandatory depends upon the specific speed alleged.” (Id.)

“Communication with municipal court defendants is haphazard and known by the court to be unreliable.” (Id.)

Court “procedures and operations are ambiguous, are not written down, and are not transparent or even available to the public on the court’s website or elsewhere.” (Id.)

“[T]he court’s fine assessment procedures do not adequately provide for a defendant to seek a fine reduction on account of financial incapacity or to seek alternatives to payment such as community service.” (Id. at 3-4.)

“Ferguson does little to ensure that persons who have missed a court date are properly notified of the consequences ​ such as arrest or losing their driver’s licenses, or that those consequences have already been levied.” (Id. at 46.)

As a cost-cutting measure, the Ferguson Municipal Court in 2012 stopped sending notices to defendants who had arrest warrants issued after missed court appearances, a practice some court employees thought useful as some defendants came in to clear up their warrants; federal investigators “spoke with several individuals who were arrested without ever knowing that a warrant was outstanding.” (Id. at 47.) These defendants also were never advised that an additional charge of failing to appear in court was filed. (Id. at 47 n.25.) And those consequences could be severe. The report cities examples of added fees and costs for missed appearances that in one instance had an African American woman still owing $541

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after paying $550 on two old parking tickets that originally were a fairly steep $151. (Id. at 4.) Another common occurrence was suspension of driver’s licenses for failing to pay traffic fines and then, regardless of indigence, refusing to allow licenses to be reinstated unless the fines were paid in full. (Id. at 50.)

CASH-REGISTER JUSTICE BEYOND FERGUSON Though Ferguson became the lightning rod, the scourge of “policing for profit” is widespread. City of Minneapolis 2007 budget planning documents showed that police traffic officers were “assumed to recover 50% of their salary in fine revenue,” and parking enforcement agents were not only expected to pay their own way by writing tickets but were subjected to monthly meetings “discussing the importance of keeping numbers up.” (Traffic Control Agents — Revenue Shortfall, MINNEAPOLISMN.GOV (2007), https://tinyurl.com/y9dnz4nt.) The documents also showed that Minneapolis anticipates $119,000 in ticket revenue during each snow emergency and laments that in mild winters “the opportunity for this revenue is lost.” (Id.) “Montgomery, Ala., collected nearly $16 million in ‘fines and forfeitures’ in 2013 — more than five times the amount collected by other similarly sized Alabama cities, according to a suit filed on behalf of jailed indigent residents.” (Policing for Profit Perverts Justice: Our View, USA TODAY, Mar. 11, 2015, https://tinyurl.com/yblfypdy.)

It’s not just larger cities like Minneapolis or Montgomery or suburbs like Ferguson. In 2009, the Mayor’s Court in tiny Hanging Rock, Ohio (population 221), reported $401,218 in court revenue, while an even smaller community, Linndale (population 179), brought in $490,320. (Justin Conley & Rebecca McKinsey, Ohio’s Mayor’s Courts, Big Business, COLUMBUS DISPATCH, July 12, 2012, https://tinyurl.com/ ydcb8p99.) The DOJ Ferguson investigation noted that profit-oriented law enforcement has a severe impact not only on the credibility of the justice system but also for those of limited means: “Minor offenses can generate crippling debts, result in jail time because of an inability to pay, and result in the loss of a driver’s license, employment, or housing.” (FERGUSON REPORT, supra, at 4.) In a 22-page analysis, the Ohio American Civil Liberties Union (ACLU) labeled these courts purveyors of “debtors’ prisons” and urged reform. (AM. CIVIL LIBERTIES UNION OF OHIO, THE OUTSKIRTS OF HOPE: HOW OHIO’S DEBTORS’ PRISONS ARE RUINING LIVES AND COSTING COMMUNITIES (2013), https://tinyurl.com/blrwy7k.) The Ohio ACLU found that in two-thirds of the local “mayor’s courts,” studied indigent defendants were jailed without meaningful hearings on whether they had the ability to pay delinquent fines. The Ohio Supreme Court responded by issuing “bench cards” reminding judges of the rights of indigent defendants and judicial responsibilities and recommending appropriate procedures to ensure compliance.

The Southern Poverty Law Center (SPLC) challenged dozens of Alabama municipal courts that failed to afford indigent defendants required hearings before seeking to imprison them for failure to pay fines. Even after the City of Montgomery agreed to resolve the SPLC lawsuit and comply with state and federal laws protecting indigent defendants, on January 5, 2017, the presiding municipal court judge, Armstead

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Lester Hayes III, was suspended by the Alabama Court of Judicial Conduct for 11 months. The inquiry found that Judge Hayes violated seven canons of judicial ethics, including incarcerating poor defendants without making appropriate determinations of ability to pay. On the flip side, the Mobile Municipal Court proactively took several measures to reduce the number of people incarcerated for failing to pay court obligations, and the local sheriff’s department implemented a “work crew” program where indigent defendants avoid jail by performing community service work. (Lawrence Specker, Mobile’s Municipal Court Reforms Bring Swifter Justice, Jail Savings, AL.COM (Aug. 9, 2016), https://tinyurl.com/yath29xk.)

“Policing for profit” also attracted the attention of the US Commission on Civil Rights, which issued a report in September 2017 encouraging the DOJ to continue to pursue monitoring of local courts to guard against practices that can lead and have led to discrimination and inequitable access to justice when not exercised in accordance with the protections afforded under the due process and equal protection clauses of the United States Constitution. (See U.S. COMM’N ON CIVIL RIGHTS, TARGETED FINES AND FEES AGAINST LOW-INCOME COMMUNITIES OF COLOR: CIVIL RIGHTS & CONSTITUTIONAL IMPLICATIONS (2017) [hereinafter STATUTORY ENFORCEMENT REPORT].) “Dependence on traffic citations to fund local governments creates an incentive for law enforcement to issue as many citations and fines as possible, regardless of the severity of the offense. Such revenue systems can result in abuse when raising funds replaces public safety as the primary goal of law enforcement.” (Id. at 12.)

The Commission noted that municipal fines and fees accounted for 12.9 percent of Ferguson’s operating budget, “whereas other Missouri municipalities collected less than three percent, and other comparable United States cities collected less than two percent from fines and fees.” (Id. at 22.) But Ferguson was hardly alone. A neighboring suburb, Saint Ann, Missouri, made up 30.4 percent of its budget from fines and fees, and even College Park, Maryland, a Washington, D.C., suburb that is home to the University of Maryland, raised 13.6 percent of its municipal budget from fine revenue — more than Ferguson. (Id. at 21- 22.)

THE LAW “The primary purpose of an ordinance cannot be the raising of revenue in lieu of taxation ​ .” (Village of Sister Bay v. Hockers, 317 N.W.2d 505, 508 (Wis. Ct. App. 1982).) But monetary sanctions may “at least pay the cost of enforcement of ordinances and regulations” and “be imposed to effect compliance and deter violations.” (Id.) “Revenue production is not a legitimate basis for imposing a fine.” (State ex rel. Pedersen v. Blessinger, 201 N.W.2d 778, 781 n.2 (Wis. 1972).) Excessive fines or civil forfeitures may violate the excessive fines and penalties clause of the Eighth Amendment. (Austin v. United States, 509 U.S. 602, 609-10 (1993); see also State v. Hammad, 569 N.W.2d 68, 70-71 (Wis. Ct. App. 1997).) “It must be remembered that courts generally, and traffic courts in particular, are not collection agencies and should not be made such.” (Blessinger, 201 N.W.2d at 784.)

Despite the frequency of its observance in the breach, the law is clear that it is unconstitutional to jail a poor person unable to pay a fine. (See Bearden v. Georgia, 461 U.S. 660 (1983); Tate v. Short, 401 U.S.

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395 (1971); Williams v. Illinois, 399 U.S. 235 (1970).) “[T]he 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.’ In other words, if the State determines a fine ​ to be the appropriate and adequate penalty ​ it may not thereafter imprison a person solely because he lacked the resources to pay it.” (Bearden, 401 U.S. at 667-68 (alterations in original) (citation omitted).)

The Bearden Court made it clear, however, that “[a] defendant’s poverty in no way immunizes him from punishment.” (Id. at 669.) “For example, the sentencing court could extend the time for making payments, or reduce the fine, or direct that the [defendant] perform some form of labor or public service in lieu of the fine.” (Id. at 672.) “[O]ur holding ​ does not suggest any constitutional infirmity in imprisonment of a defendant with the means to pay a fine who refuses or neglects to do so.” (Id. at 668.) “[F]ailure to make sufficient bona fide efforts to seek employment or borrow money in order to pay ​ may reflect an insufficient concern for paying the debt ​ to society,” and the state is “justified” in using imprisonment. (Id.) “Ownership of, or equity in, property indicates that a defendant is not constitutionally indigent and that his or her failure to pay a fine is contumacious.” (State v. Johnson, 315 P.3d 1090, 1100 (Wash. 2014).) Property ownership “allows the defendant to ‘borrow money or otherwise legally acquire resources in order to pay his court-ordered financial obligation.'” (Id.)

As the Wisconsin Supreme Court explained some 45 years ago, the law is neither complicated nor confusing:

If the defendant has ability to pay the fine and will not, then imprisonment is a proper means of enforcement. In such case, the defendant has a key to his imprisonment and it is only his contumacy which keeps him from enjoying his liberty.

But what about the person unable in fact and in truth to pay a fine? In such a case, we hold it would be discriminatory to imprison him to coerce a performance he is unable to give. Under such conditions he is imprisoned because of his poverty. The inability to pay a fine is not different than the inability to pay alimony and support in civil cases. The failure must be contumacious. But the inability to pay and the question of indigency are relative terms and in the case of a fine, the trial courts should take a long and hard look upon the argument of inability to pay in our affluent society.

Too many people claim indigency when there is no indigency in fact. Too many claim an inability to pay when they consider the payment of a fine to be in the lowest order of priority. In traffic cases it is difficult to find inability to pay when a defendant owns an automobile and seemingly has money to buy gasoline or has the ability to borrow. Nevertheless, the constitution we believe forbids the imprisonment as a fine- collection method when the court knows it cannot work.

Reduced to its bare essence, the law is clear that before a person may be imprisoned as a sanction for failing to pay a fine, he or she is entitled to have a hearing on his or her ability to pay, and if indigent,

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courts may not impose jail as a sanction. Judges can, however, reduce the amount owed, extend the deadline for payment, allow installment payments, or allow a defendant’s financial obligations to be satisfied by performing community service work. Indeed, conserving jail space to house prisoners who pose a threat to the community is simply smart law enforcement and a judicious use of scarce resources. Providing alternatives to defendants of limited means promotes accountability and public safety: “The State is not powerless to enforce judgments against those financially unable to pay a fine; indeed, a different result would amount to inverse discrimination since it would enable an indigent to avoid both the fine and imprisonment for nonpayment whereas other defendants must always suffer one or the other ​ .” (Williams, 399 U.S. at 244.)

THE WISCONSIN MODEL: COMMUNITY-BASED JUSTICE For most citizens, the only contact they will have with police and the courts is receiving a citation for a minor traffic or municipal ordinance violation such as having an unleashed dog or shoplifting. For those defendants, their experience may often be likened to Forrest Gump’s box of chocolates where “you never know what you’re going to get” — community-based or cash-register justice. This depends in large measure on whether policing is predicated as a means of promoting public safety or raising revenue, the latter being an increasing concern as cash-strapped communities seek to balance their budgets. Properly utilized, however, municipal courts can be an effective means of preserving scarce criminal justice system resources for defendants whose cases require them.

One such example of a community-based justice alternative is Wisconsin’s nearly 240 municipal courts (only Milwaukee and Madison have full-time judges) that have exclusive jurisdiction over municipal ordinance violations ranging from speeding and shoplifting to first offense driving under the influence. The Wisconsin system stands out as a model of justice that is both community-based and an alternative to criminal courts, allowing diversion of appropriate cases.

More than 40 years ago, the Wisconsin Supreme Court cited with approval the American Bar Association Criminal Justice Standards for the Prosecution Function encouraging diversion for some offenders:

The American Bar Association Standard 3.8, relating to the prosecution function, charges a prosecutor with the responsibility of exploring: “​ the availability of non-criminal disposition, including programs of rehabilitation, formal or informal, in deciding whether to press criminal charges; especially in the case of a first offender, the nature of the offense may warrant non-criminal disposition.”

The diversion of a case to noncriminal channels may in many instances substantially further the ends of justice ​ . [D]iversion properly employed has had substantial success in avoiding recidivism and ​rehabilitation may, in some cases, be accomplished much more successfully by a diversion of a putative defendant and at far less cost than a substantial period of incarceration.

(Thompson v. State, 212 N.W.2d 109, 112 (Wis. 1973).)

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The ability to divert a defendant from the criminal justice system in Wisconsin begins with the definition of a crime: “A crime is conduct which is prohibited by state law and punishable by a fine or imprisonment or both. Conduct punishable only by a forfeiture is not a crime.” (Wis. STAT. § 939.12.) In addition to general authority to enact ordinances, municipalities with few limitations are specifically authorized to adopt as ordinances almost all portions of the criminal code. (Id. § 66.0107.) Municipalities may also adopt state traffic violations that are not crimes (including first offense operating under the influence) as ordinances so long as they are “in strict conformity” with state statutes. (Id. §§ 349.03, .06.) Municipal ordinance violations — including those that parallel the state criminal and motor vehicles codes — are civil “forfeitures.” (State ex rel. Keefe v. Schmiege, 28 N.W.2d 345 (Wis. 1947).) “An action to recover a forfeiture for violation of an ordinance is thus a civil proceeding ​ .” (City of S. Milwaukee v. Schantzen, 44 N.W.2d 628, 629 (Wis. 1950).) The burden of proof necessary to support a conviction is the “middle” standard of “clear, satisfactory, and convincing evidence.” (City of Madison v. Geier, 135 N.W.2d 761, 764 (Wis. 1965).)

Cities, villages, and towns may create municipal courts to adjudicate violations of local ordinances. (Wis. CONST. art. VII, § 14; Wis. STAT. § 755.01(1).) Municipal courts are a “coequal branch of the municipal government” with “exclusive jurisdiction over an action in which a municipality seeks to impose forfeitures for violations of municipal ordinances.” (Wis. STAT. §§ 755.01(1), .045(1).)

Half of Wisconsin’s municipal judges are lawyers, and all are subject to mandatory judicial education requirements. (Id. § 755.18(1).) Court employees may only be appointed, supervised, and removed by the judge. (Id. § 755.10.) Court sessions are to be held in a public building and “shall be located in an area separate from the police department by design or signage.” (Id. § 755.17(2).) Similarly, court staff “shall be located in an area separate and distinct from the police department.” (Id. § 755.17(3).) Court clerks while performing court-related duties “may not ​ wear anything that implies or indicates that he or she is a law enforcement officer.” (Id. § 755.17(1m).) These provisions are designed to ensure that municipal courts and judges are independent and not under the supervision and control of other local officials and that judges and staff are independent of the local police.

“[V]iolations of municipal ordinances are minor offenses for which a forfeiture is the only permissible direct punishment.” (State ex rel. Prentice v. Cty. Court, 234 N.W.2d 283, 289 (Wis. 1975).) A key component in Wisconsin’s criminal diversion scheme is that municipal ordinance violations are considered “civil forfeitures” instead of a crime, so anyone convicted in a municipal court does not get tagged with a criminal record and the resulting legal and social disabilities. This often turns out to be a “win-win” for both the public and defendants — violators are held accountable without getting a criminal record (or a jail or probation sentence), while taxpayers are spared the cost of cases that otherwise would contribute to a bogged-down criminal justice system and correctional resources are conserved for those offenders who need them.

For example, a high school senior is caught shoplifting $25 worth of cosmetics at Target. At age 17, she

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could be charged with misdemeanor retail theft punishable upon conviction by a fine not to exceed $10,000 and/or up to nine months in jail. (Wis. STAT. § 943.50.) She could also be put on probation for one year. (Id. § 973.09(2).) As a first offender, it is unlikely that she would be jailed or placed on probation for shoplifting; but because she is accused of a crime, she is entitled to a jury trial and, as most high school students are indigent, she would qualify for public defender services. Even if the case were resolved with a guilty plea, it would not be uncommon for there to be at least three court appearances before the case is concluded. At the end, the defendant would in all likelihood face a fine far less than the $10,000 maximum and might eventually have her conviction expunged if she satisfied her sentence without further violations. In short, thousands of dollars of resources would be poured into a case that is likely to end with a small fine — and the defendant, unless her record is expunged, would have a lifetime criminal record.

Instead of referring the case for criminal prosecution, the arresting officer gave her a municipal ordinance citation. She appeared with her parents in the Pleasant Prairie court at an evening session (cases for juveniles and students are usually heard at night so they do not miss school and parents can be present). She was told that her citation was merely an accusation and she had an absolute right to have a trial to the court. She was also told that if convicted she could be ordered to pay up to $691 ($500 plus costs) but she would not have a criminal record. On her guilty plea, the defendant was ordered to do 18 hours of community service work in the next 30 days or pay $187 ($100 plus costs). In the Pleasant Prairie court, community service work is the norm in such cases because it levels the playing field between young defendants of limited means and those who can afford to pay monetary penalties (or, worse, avoid accountability by having parents pay). The defendant was warned that failure to pay or seek an extension or modification could result in being jailed, although in this county the sheriff’s department has a public service work crew program where defendants may avoid actual jail time by performing community service work.

In another example, an 18-year-old college freshman studying to be a physical therapist was arrested for possession of marijuana by a police officer investigating underage drinking. First offense simple possession of marijuana is a misdemeanor criminal charge, but a conviction could under federal law exclude him from receiving student financial aid. A criminal conviction also might make it more difficult for him to receive a professional license. The officer, however, issued a municipal citation for possession of marijuana and warned him for underage drinking. The defendant, who worked a summer job, pleaded guilty and was assessed $250 ($150 plus costs), saying that he would be able to pay it by the end of the summer. He was given 60 days to pay and told that if he was unable to do so he should come back to court to ask for an extension or an installment payment plan. The defendant was also warned that failure to comply could result in incarceration as a sanction but he was entitled to perform community service work as an alternative if he was indigent and could not afford to pay.

In Wisconsin, a municipal court finding an adult defendant (age 17 or above) guilty may impose a

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monetary penalty (civil forfeiture), community service work, suspension or revocation of a driver’s license, or other dispositions authorized by a particular statute. (Id. § 800.09(1b).) (In juvenile cases, municipal courts have some of the same powers as juvenile courts, including referring a child for counseling or substance abuse treatment or ordering a truant to attend school.) Restitution may be ordered. Defendants performing community service work in lieu of paying court obligations must receive credit against the amount due for at least the hourly minimum wage. (Id. § 800.09(1j).)

Wisconsin law requires municipal judges when imposinj a sentence to “inform the defendant, orally and in writing of the date by which restitution and the payment of th forfeiture, plus costs, ​ must be made, and of the possibl consequences of failure to do so in timely fashion, includinj imprisonment or suspension of the defendant’s motor vehicl operating privilege.” (Id. § 800.09(1g) (citations omitted). Further, the court must “inform the defendant, orally and i writing, that the defendant should notify the court if he o she is unable to pay the judgment because of poverty and tha he or she may request community service in lieu of paymen of the judgment.” (Id. (citation omitted).) If the defendant i not present (a default judgment may be ordered or the judgi may issue a summons or arrest warrant for a nonappearinj defendant), “the court shall ensure that the information is sen to the defendant by mail.” (Id.) If the defendant is indigen due to poverty — usually considered to be someone whosi income is below the federal poverty level or who receive needs-based public assistance (such as food stamps o medical assistance) — “the court shall provide the defendan with an opportunity to pay the judgment in installments taking into account the defendant’s income, or to perform community service in lieu of payment of the judgment. (Id.) If a defendant’s driver’s license was suspended dui to nonpayment of court obligations (limited to one year o until payment is received), the court “may” in hardship case and “shall” if a defendant is unable to pay due to povert terminate the suspension and give the defendant an installmen payment plan or allow a community service alternative. (Ia §§ 800.09(3), .095(1)(a).) The judge may also reduce (to zero if appropriate) the amount due if a defendant is unable to pay There are only two circumstances in Wisconsin where ¡ municipal judge may imprison a defendant as a sanction. Th first is for no more than seven days for contempt (misconduc in the presence of the court that interferes with the cour proceeding or with the administration of justice or that impair the respect due the court). (Id. § 800.12.) The second is fo no more than 90 days (with credit of at least $50 per da incarcerated toward the amount due) for nonpayment of cour obligations — but only after the judge follows the mandate i Wisconsin Statutes section 800.095(1)(b)(2):

No defendant may be imprisoned [for nonpayment] unless the court makes one of the following findings:

a. Either at sentencing or thereafter, that the defendant has the ability to pay the judgment within a reasonable time. If a defendant meets the criteria [for poverty], the defendant shall be presumed unable to pay under this subsection and the court shall either suspend or extend payment of the judgment or order community service.

b. The defendant has failed, without good cause, to perform the community service [alternative].

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c. The defendant has failed to attend an indigency hearing offered by the court to provide the defendant with an opportunity to determine whether he or she has the ability to pay the judgment.

d. The defendant has failed, without good cause, to complete an assessment or treatment program related to alcohol or drugs that was ordered in lieu of a monetary forfeiture.

The Wisconsin procedure is designed to be efficient, “user friendly,” and respectful of the right of defendants. For example, unless a court appearance is mandated (such as in driving under the influence or juvenile cases), a defendant may avoid coming to court if he or she either pays the scheduled violation amount or pleads not guilty in writing (the author’s court also accepts e-mailed pleas) before the initial appearance. (Id. § 800.035.) If the defendant does neither, he or she may be deemed to have entered a “no contest” plea and found guilty by default, with the court mailing the defendant a notice of the judgment and amount due along with an explanation of what to do if he or she is unable to pay it in a timely manner. (Id. §§ 800.035(9), .09(1g).) The court may also issue a summons or warrant upon nonappearance, but in the latter case a person cannot be held in custody for more than 48 hours. (Id. § 800.035(9).) Any proceeding, including a trial, may be held and any “party, witness, or interpreter may appear by telephone or by audiovisual means” if the court approves. (Id. § 800.085.) (The Pleasant Prairie court has had entire trials by audiovisual means.) If a defendant appears in court in response to a citation, the judge must, pursuant to section 800.035(2)(a), either orally or in writing:

1. Inform the defendant of each charge and explain the range of penalties for each charge.

2. Inform the defendant that he or she may plead guilty, not guilty, or no contest or may request a continuance.

3. Inform the defendant of the right to a jury trial [in circuit court] on charges [of operating under the influence].

4. Inform the defendant that if he or she is unable to pay the forfeiture, costs, fees, or surcharges due to poverty, he or she may request an installment payment, community service, or a stay of the judgment.

A defendant may plead guilty, not guilty, or no contest or request a continuance. If the defendant pleads not guilty, the case may be scheduled for a pretrial conference or trial. If the defendant does not plead or request a continuance, the court will treat it as a “not guilty” plea. (Id. § 800.035(2) (c).) A defendant who pleads guilty or no contest may be immediately sentenced, and judges are encouraged to use this opportunity to ascertain the defendant’s ability to pay: “Much time could be saved if trial courts would follow the practice of ascertaining the defendant’s ability to pay a fine at the time of sentencing.” (Blessinger, 201 N.W.2d at 784.)

Procedural safeguards in Wisconsin’s municipal courts do not stop there. A recent amendment to judicial conduct rules suggests that judges “make reasonable efforts, consistent with the law and court rules, to

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facilitate the ability of all litigants, including self-represented litigants, to be fairly heard.” (Wis. SUP. CT. R. 60.04(1)(hm).) Most municipal court defendants are unrepresented, so the practical effect of this amendment is to encourage and allow judges to, within reasonable bounds, relax court procedures to assist pro se defendants. (For example, the author routinely considers at trial the lawfulness of an officer’s stop of a defendant or arrest even in the absence of a formal motion.) Anyone convicted at trial must be advised of the right to appeal to the circuit court, which will review the matter on the record, or at the request of either party, hold a new trial (which may be to a six-person jury if a timely written demand is made). (Wis. STAT. § 800.14.) Further, a defendant found guilty by default for failing to appear in court or who otherwise wishes to reopen a case may, within six months of disposition, “move for relief from the judgment because of mistake, inadvertence, surprise, or excusable neglect.” (Id. § 800.115.) Municipal courts may also reopen judgments outside of the six-month window upon accepting a stipulation of the parties or in the furtherance of justice. (Id.) Such motions are not uncommon in cases of identity theft or where a defendant with a lengthy history of traffic convictions (often the result of missed court appearances) is trying to reinstate his or her driving privileges.

The Wisconsin municipal court model of community-based justice is a commonsense approach that benefits defendants, taxpayers, and the community, and by diverting more than 500,000 cases annually from circuit courts conserves increasingly strapped criminal justice and correctional resources for those defendants and cases that require additional attention. Defendants benefit from a system that is convenient, safeguards their rights, avoids a criminal record, and, contrary to the “cash-register justice” model, is even more affordable — a basic $30 speeding ticket issued by a local officer is $98.80 with costs in municipal court, but the same ticket if issued by a state trooper or deputy sheriff costs $175.30 in circuit court. Municipal court procedures allow even dilatory defendants an opportunity to be heard if they are unable to afford to pay court obligations and mandate additional options if a defendant is impoverished. A party unhappy with a municipal court verdict may appeal to the circuit court on the record or ask for a new trial. And incarceration is not an option (except for contempt of court) unless a defendant willfully refuses to pay his or her court obligations after being given an opportunity to be heard on whether he or she is able to pay.

Communities benefit by providing accountability and promoting public safety in an efficient and cost- effective manner. For example, in many rural areas the county seat could be a 60-mile (or more) round- trip. Removing police officers from patrol for such an extended period of time — which would happen if there were no municipal court — is costly and could leave a community unprotected. Defendants and witnesses would likewise bear the cost and burden of traveling to the courthouse in cases that could be handled more efficiently and effectively at home. This is particularly so in cases with juvenile and young offenders where, for example, the hometown court may be able to work more effectively with school officials and counselors to resolve a truancy or substance abuse case (and noncompliant juveniles can be referred to the juvenile court). For the criminal justice system — and taxpayers — municipal courts allow critical and costly resources to be reserved for offenders and cases requiring them.

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DUE PROCESS AND ACCOUNTABILITY Whether local courts dispense community-based or cash-register justice depends on whether the focus is on promoting public safety and accountability in the community as opposed to revenue production. Judicial independence and impartiality is also an important factor, as evidenced by statutes requiring municipal courts and staff to be segregated from police departments.

Defendants are not jailed or deprived of their driver’s licenses for being unable to pay a citation, but a scofflaw may be sanctioned because he or she willfully disobeyed a court order (sentence) without showing just cause (inability to pay) after having been given a chance to explain and ask for relief — and even then the sanction may be purged by compliance. Pleasant Prairie and many of its sister courts have an interactive online presence where defendants may receive guidance on court procedures and access to state statutes and local ordinances, and may request a continuance or plead not guilty online. Pleasant Prairie police officers receive multicolored citation information cards to give to defendants that provide basic information “in plain English” such as how to plead not guilty or request a continuance without coming to court, contest a disputed citation, explain extenuating or mitigating circumstances, seek additional time to pay, or avoid incarceration or a driver’s license suspension if they are indigent. In short, had Ferguson or similar communities where policing for profit is the norm followed the procedures Wisconsin’s municipal courts are required to follow, they would have likely avoided the DOJ’s stinging indictment in the Ferguson Report. Even the most severe sanction — imprisonment — passes constitutional muster if correctly applied.

Gerard Haas, a landlord in Racine, Wisconsin, ignored multiple municipal code citations. Being found guilty by default and subsequently failing to pay thousands of dollars in fines, he was arrested on commitments (warrants) issued by the Racine Municipal Court. Instead of seeking a determination of his ability to pay, Haas sought habeas corpus relief in the circuit and appellate courts. The Wisconsin Supreme Court affirmed denial of habeas relief, as Haas failed to show that he exhausted other available remedies. (State ex rel. Haas v. McReynolds, 643 N.W.2d 771 (Wis. 2002).) Haas renewed his battle in federal court, adding claims that imprisonment for nonpayment of a civil municipal court forfeiture amounted to an unconstitutional imprisonment for a debt.

The district court sided with the Wisconsin Supreme Court on the habeas issue and further rejected Haas’s attack on his imprisonment for failing to pay municipal citations that he had repeatedly ignored, holding that he “was not incarcerated because he owed a debt; he was incarcerated because he ignored the direct orders of a court. ‘[A] duty imposed by the court’ is not a ‘debt’ ​ even if it requires the payment of money.” (Haas v. Wisconsin, 241 F. Supp. 2d 922, 934 (E.D. Wis. 2003), aff’d, 109 F. App’x 107 (7th Cir. 2004), cert. denied, 543 U.S. 1053 (2005).) The district court further rejected Haas’s argument that incarceration for failing to pay municipal court obligations was involuntary servitude.

He could have paid the forfeitures or demonstrated to the municipal court that he was financially unable to pay. Indeed, had plaintiff shown that he was unable to pay, [the judge] could not have lawfully ordered

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his incarceration. Rather than choose either of these routes and avoid jail, plaintiff chose to ignore the court’s orders and warnings. Plaintiff’s eventual imprisonment was, therefore, not involuntary.

(Id. (emphasis added) (citations omitted).)

Haas demonstrates that if courts afford defendants the protections and due process mandated by Tate, Williams, and Bearden (and absent in Ferguson), they can survive the challenge that imprisonment for nonpayment of court obligations is an unconstitutional attempt to collect a debt or involuntary servitude.

Similarly, the loss of driving privilege for nonpayment of traffic fines and forfeitures may also be upheld if due process rights are observed:

[License] suspensions ensure procedural due process because the sanction is not imposed unless all of the following occur: (1) the defendant is notified that failure to pay ​ may result in suspension; (2) the suspension is rescinded and the operating privilege reinstated once the fine is paid; (3) the suspension will not be enforced against any individual who is able to demonstrate an inability, for good cause or indigence, to pay the fine; and (4) the suspension is limited in duration ​ .

(City of Milwaukee v. Kilgore, 532 N.W.2d 690 (Wis. 1995).)

Both Haas and Kilgore recognize that the sanctions are not imposed — nor should they be — if a defendant is impoverished and cannot pay. The sanctions of incarceration or a license suspension flow from a defendant’s willful disobedience of a court order. A concern raised in the Ferguson Report is whether a defendant whose license was suspended for noncompliance should be required to pay his or her court obligations in full before he or she is able to get driving privileges reinstated. The Wisconsin procedure addresses that by giving defendants whose licenses are under suspension an opportunity to request a review at any time based on ability to pay, with judges mandated to hear the request and, if the defendant is impoverished, substitute a community service alternative or other modifications. (Wis. STAT. §§ 800.09(3), .095(1) (a).) Even if a defendant is unable to establish “poverty” (statutory indigence), the court has the discretion to terminate a suspension and allow for alternatives due to hardship (one example may be where a defendant was unemployed and only recently returned to work).

COURTS ARE IN THE JUSTICE BUSINESS, NOT THE REVENUE PRODUCTION BUSINESS The success of a community-based justice alternative, of course, depends on the willingness of judges to recognize both their legal and ethical duties to serve justice, not the financial expectations of the municipal government. Similarly, municipal boards and administrators must respect judicial independence and the coequal status of the municipal court. Although undoubtedly revenue is raised as the result of police enforcement and judicial imposition of monetary penalties, courts nonetheless are in the justice business, not the revenue production business. Still, judges are often pressured, as in Ferguson, to achieve financial goals; and even in the absence of such efforts, courts may be asked as part of the

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budgeting process to estimate revenue, a speculative task at best and at worst one that may create both an unrealistic expectation as well as a public perception that the courts are there to fill municipal coffers as opposed to dispensing justice and promoting public safety. (There are times, too, when public safety and rehabilitative concerns take precedence over imposing a fine. For example, Pleasant Prairie and some neighboring courts partnered with the local substance abuse council to provide an alcohol and other drugs assessment and education program for juveniles and young offenders who may need such services. This is predicated on the belief that it is more important to the community to intervene as soon as possible if there is a problem to be addressed than to collect $187 for an underage drinking ticket. Defendants who complete the program usually have their citations dismissed.)

While the bulk of defendants in routine traffic and municipal violation cases are unrepresented, lawyers nonetheless can play an important role in assisting indigent defendants. For example, many communities have driver’s license restoration projects assisting defendants to reinstate driving privileges. Often they are unaware of what they need to do to get their licenses back — and sometimes even that they are eligible to do so. Lawyers can volunteer to either directly assist participants or train project volunteers on how to assess reinstatement eligibility and develop a checklist for defendants to follow.

“Driver’s license suspensions can perpetuate poverty and increase recidivism by forcing individuals to either lose their job, take a lower paying job that does not require driving, or drive illegally. This prevents people from supporting themselves and their families and improving their own lives.” (STATUTORY ENFORCEMENT REPORT, supra, at 74.) The Pleasant Prairie court — and many others — give defendants arrested for driving while suspended or revoked or without a license a reasonable chance to reinstate or acquire driving privileges. Judges are often able to determine reinstatement eligibility in court, and in some cases defendants were immediately able to reinstate online in the courtroom. The “carrot” in such situations is that a defendant who gets or reinstates a license may be found guilty of a lesser charge that does not impair his or her driving record. Having drivers operating legally benefits the public interest as well, because to be driving lawfully they will also need to have insurance in the event of an accident.

Judges can also provide reasonable guidance to unrepresented defendants who may not know, for example, the criteria for lawful stops (reasonable and articulable suspicion) or arrests (probable cause), or even such basic legal nuances as traffic signs must conform to the Manual on Uniform Traffic Control Devices or practical and scientific ones as a police officer’s radar “gun” is far more likely to “clock” a big truck than a tiny Toyota Yaris driving in a sea of tractors and semi-trailers on a busy highway. Judges can also educate defendants (and sometimes police officers, too) that while there may have been sufficient grounds to justify a stop and arrest for a violation, it does not necessarily follow that there is enough evidence to convict. Doing so can promote an understanding of and respect for the rule of law.

Respecting the rights of the defendants, particularly indigent ones, isn’t just “the right thing to do” for judges — it’s the ethical thing to do as well as the law. “The Canons are not merely guidelines for proper judicial conduct. It is well-settled that the Canons of Judicial Ethics have the force and effect of law.” (In re

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Sheffield, 465 So. 2d 350, 355 (Ala. 1984).)

[A]lthough ​ mere legal error “normally” does not and should not subject a judge to charges of judicial misconduct, the overriding concern is the capacity of judicial behavior, objectively viewed, to undermine public confidence in the judicial system. Judicial conduct, including conduct in the form of legal error, that has the capacity to undermine public confidence in the integrity and impartiality of the judicial process can be the basis for charges of judicial misconduct and can lead to the imposition of discipline.

(In re DiLeo, 83 A.3d 11, 24 (N.J. 2014) (citations omitted).)

The recent 11-month suspension of Judge Armstead Lester Hayes III cited above is but one example of how judges are being held personally accountable for failing to protect the rights of defendants.

CONCLUSION At the end of the day, municipal courts can either be the gateway to “debtor’s prison” or an effective community-based alternative to a clogged and resource-strapped criminal justice system that promotes public safety and accountability while respecting the rights of defendants and encouraging respect for the law. The Wisconsin model, if statutes and procedures are adhered to, is a good working blueprint for the latter. Most defendants are good people who simply made a mistake, and there is no need to use the proverbial sledgehammer to kill a fly. But while seemingly trivial in the grand scheme of things, their cases are important to them and to the community. How they (and their cases) are treated goes a long way in achieving either respect for the law and courts or the lack thereof.

PHOTO (COLOR)

PHOTO (COLOR)

~~~~~~~~ By RICHARD A. GINKOWSKI

RICHARD A. GINKOWSKI, vice chair of the Criminal Justice editorial board, is a municipal judge in Pleasant Prairie, Wisconsin, elected in 2013 after serving more than 30 years as a state prosecutor. Judge Ginkowski has been an instructor in law enforcement, a prosecutor, and an instructor for judicial training programs. In addition to being a member of the Criminal Justice Section, he also belongs to the ABA Judicial Division and the National Conference of Specialized Court Judges. In 2017, Judge Ginkowski moderated a judicial ethics panel at the ABA Annual Meeting in New York on how judges can “Ferguson proof” their courts to promote accountability and public safety while safeguarding the rights of indigent defendants.

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