Probation revocation hearings for minor charges often lead to incarceration without legal counsel

The demonstrations and protests across the country since the August 2014 death of Michael Brown in Ferguson, Mo., have been about more than fatal police shootings.

 

What the U.S. Department of Justice found was a deeply set mistrust and fear of law enforcement and the courts when investigators were sent in to examine the judicial system in Ferguson. What’s worse, according to U.S. Attorney General Loretta E. Lynch, it isn’t just happening in Ferguson. It’s across the country.

And it’s in Augusta, an investigation by The Augusta Chronicle has found.

The Chronicle examined Richmond County State Court records for more than 6,000 cases in which people on probation for misdemeanor offenses, mostly traffic violations, were accused of breaking the terms of their probation from 2011-2013. Of those cases, 42 percent had their probation revoked and were sent to jail.

In Ferguson, the people serving probation sentences for minor offenses are mostly black citizens. The Justice Department found 85 percent of the probationers in Ferguson were black residents although the city’s population is 67 percent black.

In Augusta, 74.3 percent of the people facing jail for probation revocation are black while the city’s black population is 55 percent, according to the 2014 census figures.

Black Americans are 10 times more likely to be arrested during a traffic stop, according to the Brennan Center for Justice, a nonpartisan public policy and law institute. A 2009 study by the National Council on Crime and Delinquency found that blacks are four times more likely to be jailed for probation violations than whites.

In Richmond County State Court, 75.2 percent of the probationers jailed were black.

Among them was Clifford Hayes, a 50-year-old black man arrested twice in 2007 on misdemeanor traffic offenses. His combined sentence was five years on probation. Running afoul of his probation officer meant jail unless he paid $330 and paid for electronic monitoring, which required an $80 startup fee, installation of a landline telephone and $6 a day for monitoring.

Poor punished

Hayes is so poor someone would have to give him $3,250 this year for his income to rise to the national poverty level. He stayed in jail another month at a cost to taxpayers of more than $1,500.

On Dec. 10, 2008, he was taken back to court and told he could be released if he paid $180. Jail records show that Hayes was released at 8:42 p.m. the same day, Richmond County sheriff’s Sgt. Monica Belser said.

His sentences should have expired in April 2012, but in January 2013, Hayes, homeless and suffering from lupus and diabetes, went to the Richmond County Sheriff’s Office to receive clearance needed to spend the night at a local shelter.

Instead, he was arrested on a probation violation warrant.

Days later, in court, he was ordered to pay $854 or spend eight months in jail, which would have cost taxpayers $12,000 plus medical expenses.

But Hayes, who now lives in a condemned house on Parks Avenue, receives just $710 in Supplemental Security Income benefits each month and said he simply has no money after paying his rent ($400), his medical bills ($150) and food ($50), with something left over to pay for other personal items and laundry.

“I’m broke. Period,” Hayes said. “It’s like they want you to get into trouble. Even if you do (the) right thing you still get kicked in the end.”

After learning about Hayes’ plight, Augusta attorney John “Jack” Long picked up his case pro bono, filing a habeas corpus on Jan. 15, 2013. Five days later, Superior Court Judge Daniel J. Craig ordered Hayes’ release on an own-recognizance bond.

Long said Hayes’ story shows that the system is broken.

“When the judicial system is looked upon by the public as nothing but a way to raise money, they (the public) lose respect for the cops and they lose respect for the courts,” he said.

Long and other critics have deemed the use of arrest and incarceration to collect fees and fines as created debtors’ prisons.

The U.S. banned debtors’ prisons in 1833. In 1983 in a Georgia case, the U.S. Supreme Court made it clear that courts cannot punish a person for his poverty, said Deputy Attorney General Sally Quillian Yates, former U.S. Attorney for the Northern District of Georgia. But it is still happening.

Fees become too much

It’s a system that frustrates Richmond County Sheriff Richard Roundtree, who has to find money in his budget to jail offenders.

“Incarcerating a person who has no means does nothing but flood my system with people in jail and cost the taxpayers more money, and that’s not worth it,” he said.

Approximately 10 million misdemeanor cases are filed in the U.S. each year, and 25 percent of the accused go to court without the benefit of an attorney, according to the Brennan Center.

In Richmond County State Court, only 4 percent of the people faced with a jail term for violating the terms of probation were represented by an attorney.

Under Georgia law, defendants are subject to a $50 application fee if they request court-appointed counsel, something Long contends is not only unconstitutional, but turns indigent people away from seeking representation.

According to Georgia Code 15-21A-6(c), “the court shall waive the fee if it finds that the applicant is unable to pay the fee or that measurable hardship will result if the fee is charged.” But Long said most probationers either aren’t told that or are too worried about the $50 fee to hear the phrase if it’s said in court.

No representation

Richmond County State Court Chief Judge Richard A. Slaby said he advises defendants that counsel is not provided during probation revocation hearings. But he added that he still asks them if they desire legal representation.

The $50 fee is fair, Slaby said, and he generally allows indigent defendants up to 90 days to pay. Those who aren’t deemed indigent have to pay within 30 days.

“The public defenders are good attorneys,” Slaby said. “(The defendants) are getting more than $50 worth of legal advice.”

On a rare occasion, depending on the individual circumstances of the case, Slaby said he will waive the fee altogether.

For equal justice to be real, poor people need attorneys, said U.S. Sen. Chuck Grassley, of Iowa, at a Senate hearing on poverty and legal representation in May. It’s particularly troubling that it’s the judicial system violating people’s rights, he said.

There’s a belief that legal representation isn’t important, said Iowa Chief Justice Mark S. Cady during the Senate hearing. It’s just a misdemeanor, a trivial matter, some believe. But just the opposite is true, Cady said. It leaves a permanent record that will limit a person’s ability to work, obtain an education and access housing options.

For John Carey, a 49-year-old white man living in McCormick, S.C., it also left him with no other possessions than the shirt on his back.

Carey was charged in November 2007 with DUI, failure to maintain lane, driving with a suspended license and possession of an open container. He pleaded guilty on March 24, 2008, and was sentenced to three years probation with electronic monitoring for alcohol use. Four months later he was back in jail when the probation officer accused him – Carey believes falsely – of testing positive for alcohol.

On July 18, 2008, a judge gave him the choice: serve 20 months in jail or undergo six months of rehab. He chose the latter.

Carey left rehab early to attend to his newborn child, thinking that he had served his time because he was no longer being contacted by Sentinel Offender Services, the private, for-profit company that has a contract to provide services to Richmond County State Court. A probation warrant was signed on April 2, 2009.

Hearings stack up

In 2012 Carey was stopped at a DUI checkpoint in Anderson, S.C., and was told there were two warrants for his arrest – one in Richmond County and one in Putnam County. After serving a little more than six months in a detention center in south Georgia, he appeared in Richmond County State Court in April 2013 for a probation revocation hearing – two weeks after he was booked into the Richmond County jail.

Carey recalls Judge David Watkins asking the probation officer how much time he had on his sentence. “One year,” the probation officer replied.

“I looked at them like, ‘You’re crazy. This stuff is over with,’” Carey said. “I said, ‘Your honor, can I speak?’ He said, ‘No you cannot. One year,’ and then slammed the hammer.”

The year would have cost taxpayers $18,250 in jail expenses.

After reading about a legal battle involving Sentinel, Carey said, he asked his sister to arrange a meeting with Long, who met with Carey the same day.

“He said, ‘You know you’re not supposed to be locked up. Your probation expired in 2011. This is 2013,’” Carey said.

“The thing about it, when you lose that much time after already doing six months you weren’t supposed to be doing, it’s ruined a lot of things. I was a manager at Outback (Steakhouse), and I’m finally fighting my way back into being a manager. All my stuff was kept in Anderson, and I lost all of it.”

Carey remembers the April 17, 2013, court session. There were dozens of defendants and Watkins flew through the cases. In seconds, his case was over, Carey said. “It wasn’t fair in my mind.”

Watkins, who was on vacation last week, responded by e-mail when asked about Carey.

“I’m sure Mr. Carey is very sincere in his recollection; the question is whether his recollection is accurate,” Watkins wrote, adding that he didn’t specifically remember the case. “Also, since I have a policy of letting defendants speak and Mr. Carey had an attorney, it’s highly probable if his attorney asked permission for him to say something, it would have been granted.”

Debtors’ prisons

The judicial systems at the misdemeanor level are underfunded with such high caseloads that the process becomes nearly an assembly line. To the accused, it’s attractive to go ahead and plead guilty without an attorney because “it’s just a fine,” Cady said.

In Richmond County State Court, more than 28,000 new citations and warrants were issued in 2013. In 2014, The Chronicle found a backlog of 25,537 cases.

There are widespread constitutional violations in courts steamrolling through the process of advising people of their rights, University of Georgia professor Erica Hashimoto said at the Senate hearing. States need to identify the high volume crimes – driving on a suspended or revoked license, disorderly conduct – and consider decriminalizing the crimes.

In Georgia, nearly every traffic violation is a misdemeanor crime punishable by 12 months and up to a $1,000 fine.

But people pulled over for a traffic violation in Augusta rarely face just one charge. If the driver’s license is suspended, he cannot get insurance. If he can’t get insurance he cannot legally register a vehicle. Add speeding, and this driver is looking at four years probation and at least $2,100 in fines and surcharges, not to mention the $35 monthly probation fee.

Although judges can run those misdemeanor probation sentences concurrently – which would only mean one year on probation – in Richmond County State Court the judges nearly always run the sentences consecutively. It is not unusual to find misdemeanor offenders serving longer probation sentences and paying more in fines than people convicted of felony crimes, a review of thousands of court cases shows.

When weighing whether to run a sentence concurrently or consecutively, Slaby said, he looks closely at the defendant’s history, taking into consideration the defendant’s ability to comply with the court order.

Sometimes the defendant needs more time to comply, and therefore will receive a consecutive sentence, he said.

However, Southern Center for Human Rights managing attorney Sarah Geraghty said lengthy probation sentences are handed down far too often.

“Probation is an appropriate tool in many kinds of cases,” she said. “Probation is not an appropriate tool for people who aren’t able to pay their fine for rolling through a stop sign.”

With more than half a million people on probation in 2014, Georgia’s rate of probationers is more than twice any other state, according to the Bureau of Justice Statistics. Only 7 percent of those probation sentences were for felony offenses; the rest were for misdemeanor, traffic or local ordinance violations.

Grassley said he believes the driving force is money, and private probation is seeking to jail more people who can’t pay, creating modern debtors’ prisons.

Slaby denies that the court system is out to maximize revenue.

“Absolutely not,” he said. “If that were the case we would just start revoking instead of offering community service.”

Judges “have a choice” to impose a fine, throw someone in jail or both, Slaby said. Sometimes defendants need something that will catch their attention.

But Hashimoto disagrees.

“The only way to get money out of poor people is to threaten them with jail. It’s unconstitutional, but with no attorney, who’s to protest?” she said.

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FULL COVERAGE: Private Probation
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