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January 07, 2015 Articles

Civil Rights Implications Arising from Crime of "Indigence"

Members of the bar must recognize the unjust nature of laws that criminalize or punish with increased severity based on one's indigent status and to take action where we find such laws.

By David Schoen

“Providing equal justice for poor and rich, weak and powerful alike is an age-old problem. People have never ceased to hope and strive to move closer to that goal.” Griffin v. Illinois, 351 U.S. 12, 16, 76 S. Ct. 585, 100 L.Ed. 891 (1956).

Sixth Amendment Issues Surrounding Indigence 
A great deal has been written in all sorts of forums about the imbalance in the degree and quality of justice criminal defendants attain, depending on their economic means. Example after example is given about the wealthy defendant with a “dream team” who “walked” in contrast to the indigent capital defendant whose lawyer failed to investigate or prepare his or her case, missing complete defenses to the charges or important mitigation evidence or who fell asleep at trial, if he or she showed up at all.

There is no question that the quality of a criminal defendant’s counsel and the ability to obtain other defense resources bears directly on his or her ability to defend himself or herself from the time of arrest through the full appeal process. Through the years there have been several watershed events from the courts and legislatures that have had an impact on addressing this imbalance, with at least some limited success. E.g.Gideon v. Wainwright, 372 U.S. 335 (1963) (indigent criminal defendant’s right to counsel); Ake v. Oklahoma, 470 U.S. 68 (1985) (indigent criminal defendant’s right to defense psychiatrist; necessary defense resources); Criminal Justice Act, 18 U.S.C. § 3006A (adequate representation of defendants).

The focus for both criticism and remedy directed toward the inequality between wealthy and indigent criminal defendants most often is based on the Sixth Amendment’s guarantee of the right to effective assistance of trial and appellate counsel, for “[O]f all the rights that an accused person has, the right to be represented by counsel is by far the most pervasive, for it affects his ability to assert any other rights he might have.” United States v. Cronic, 466 U.S. 648, 654 (1984).

It is vitally important that remedies addressing the needs and rights of indigent defendants to effective counsel and to defense resources that help ensure some modicum of a fair trial continue as we forever strive toward the goal enunciated in Griffin v. Illinois. However, the Sixth Amendment-related deficiencies in our criminal justice system and Sixth Amendment analysis have their limitations and this approach does not always target the full extent of the imbalance or provide the appropriate remedy. See, Lauren Sudeall Lucas, “Reclaiming Equality to Reframe Indigent Defense Reform,” 97 Minn. L. Rev. 1197 (April  2013).


Beyond Concerns about Not Having the “Dream Team” 
There still remain circumstances, even in these “enlightened” times, in which a person faces enhanced punishment and criminal charges solely because he or she is poor. In such instances, the concerns about the inequality of the system go (or should go) well beyond “just” the absence of effective counsel.

As much as one might like to think that “debtor’s prison” or status crimes are well in the past, in fact they are still very much alive and well in various forms. Criminal defense and civil-rights counsel must be vigilant to recognize these phenomena when they appear and must challenge them until they are truly gone from our criminal-justice system.

Two recently resolved cases provide examples of a court addressing the very troubling phenomenon of criminal charges and punishment that apply only to the indigent defendant in a way that denies him or her his or her basic civil rights in absolute terms.

Punishment Based on Indigence—A Modern-Day Debtor’s Prison 
On November 17, 2014, U.S. district judge Myron Thompson issued an opinion in a case encompassing a settlement agreement between counsel for indigent plaintiffs on one side and the City of Montgomery, Alabama and its municipal judges on the other that was intended to end once and for all the city’s debtor’s prison. Cleveland v. City of Montgomery, 2014 WL 6461900; 2014 U.S. Dist. LEXIS 160679 (M.D. Ala., November 17, 2014).

Local police set up a roadblock in plaintiff Cleveland’s poor inner-city neighborhood over a two year span and each time she was stopped leaving or returning home, she was ticketed because she could not present proof of insurance. Her license was suspended due to the accumulated tickets, but she continued to drive to work and to her child’s school. She was then stopped and ticketed for driving on a suspended license. When she finally went to court to appear on the traffic tickets, she was unable to pay the fines assessed. Consequently, her outstanding fines were converted to a term of imprisonment in the Montgomery Municipal Jail, based on a formula of days for dollars, and she was immediately incarcerated to serve that term.

Similarly, when plaintiff Watts appeared in municipal court on an unrelated misdemeanor charge, after dismissing the misdemeanor charge, the court learned that Watts had outstanding traffic fines. The judge gave Watts two options: pay the fine or serve a term of imprisonment equal to the “value” in daily jail time attributed to the dollar amount in outstanding fines. When Watts advised the court that he was unable to pay, he was remanded to begin his 54-day jail sentence.

This was an accepted long-standing practice that, while well known to members of the bar regularly practicing before this court, generally operated below the radar screen because it only affected the poorest of the poor, some of whom came to believe it was their only way to “work off” a fine they knew they likely could never save enough to pay. It continued unchecked for many years, with no voice speaking up for an entire indigent segment of the local population.

The settlement approved by the court in Cleveland now provides for procedures to ensure that no indigent defendants in the municipal court ever again will be incarcerated for their inability to pay fines, court costs, or restitution. The procedures require (1) notice, advising defendants that only the willful non-payment of fines can lead to incarceration, (2) the appointment of counsel for defendants, (3) an “indigence/inability to pay” hearing for any defendant claiming an inability to pay, (4) express judicial findings, and (5) the notification of appellate rights.

In analyzing the constitutional rights that prohibit the kind of debtor’s-prison scheme that had been in place, the court first turned to the decisions in Bearden v. Georgia, 461 U.S. 660 (1983) and Turner v. Rogers, -- U.S. --, 131 S. Ct. 2507, 180 L.Ed.2d 452 (2011). The Bearden Court held that under the Fourteenth Amendment’s Due Process and Equal Protection Clauses, a trial court cannot automatically revoke probation because a probationer could not pay his or her fine; rather a determination was required as to whether he or she had made bona fide efforts to pay or that “. . . adequate alternative forms of punishment did not exist.” 461 U.S. at 662. Incarceration without the steps set out in Bearden designed to make full inquiry regarding the failure to pay and the existence of alternatives would mean nothing less than depriving the debtor of his “. . . constitutional freedom simply because, through no fault of his own, he cannot pay a fine.”

In Turner, the Court addressed the possibility of an indigent’s incarceration through the civil-contempt process and built on the Bearden principles by holding that while a state did not have to provide counsel for such a proceeding, it would be required to provide “substitute procedural safeguards” that when “employed together, can significantly reduce the risk of an erroneous deprivation of liberty.” 131 S. Ct. at 2519 (internal citation omitted). The Cleveland court then adopted the settlement based on its own findings that the new procedures agreed upon by the parties facially complied with the Fourteenth Amendment’s Due Process and Equal Protection Clauses as well as the Sixth Amendment’s right-to-counsel guarantee and corresponding state constitutional rights, all of which the challenged debtor’s prison violated.

Criminalizing the Status of Indigence and Homelessness
A prime example of criminal charges applying only to a class of indigent criminal defendants solely because of their status as indigent and homeless is described in a landmark decision handed down in 2010 by the Alabama Court of Criminal Appeals in State v. Adams, 91 So. 3d 724 (Ala. Crim. App. 2010). The effect of the draconian system described in Adams was not fully eliminated until late in 2012, when Adams was held to apply retroactively to the indigent defendants who were already serving their sentences under the charge struck down in Adams. See Acra v. State, 105 So. 3d 460 (Ala. Crim. App. 2012). This elimination was finalized when the state’s petition for a writ of certiorari was denied on August 10, 2012, in the last of the Adams companion cases.

At issue in Adams was a provision in Alabama’s Community Notification Act (CNA) that required an incarcerated convicted sex offender to give notice of where he intended to reside after his release and have such intended residence approved at least 45 days prior to his release. The failure to comply with this requirement subjected the offender to a felony charge that, under Alabama’s Habitual Offender statute, could lead automatically to a sentence of life imprisonment without parole. If the inmate finally came up with an approved residence, but fewer than 45 days prior to his release date, he had, nevertheless, committed a felony and would be subject to the same penalty.

In real terms, the law meant that an indigent, homeless, incarcerated defendant whose record included a charge of (1) felony shoplifting, (2) a nonviolent sex offense that was statutorily treated as a felony, and (3) now this failure to provide an approved address at least 45 days before release would face a mandatory prison sentence of life without the possibility of parole. The record in Adams was filled with evidence of herculean efforts by the indigent offender to find an approved place to live anywhere in the country that complied with the living restrictions that convicted sex offenders typically face in every state and that would accept him, notwithstanding his offense and inability to pay.

The personal stories of the indigent offenders from their first encounter with the criminal-justice system was extraordinarily troubling as well, and included mistaken advice from their appointed counsel that they would not be required to register as sex offenders if they just pled guilty to the reduced charge the attorney had “negotiated,” the failure by appointed counsel to bring a victim’s full recantation to the prosecutor’s attention before a guilty plea was entered, and so on.

In striking down the CNA provision at issue, the court in Adams thoroughly addressed the constitutional implications when a legislature, in effect, criminalizes indigence and homelessness and punishes an offender solely based on status, rather than voluntary conduct. This sort of systemic discrimination in the criminal-justice system goes well beyond the difference in resources that money can buy. The court extensively analyzed the two constitutional bases for its decision striking down the CNA as unconstitutional—the Fourteenth Amendment’s Equal Protection Clause and the Eighth Amendment’s prohibition against cruel and unusual punishment.

As to the Equal Protection Clause violation, the court found that the statutory scheme at issue produced “discrimination resulting in a deprivation of a fundamental right that is based, in actuality, on poverty.”The bottom line, according to the court, was that under the act, sex offenders were treated differently solely based on their indigence or wealth, such that indigent homeless sex offenders who served their entire sentence would nevertheless remain incarcerated solely because they did not have the funds to secure lodging and obtain an address. This is the very sort of discrimination through a classification system that the Equal Protection Clause will not tolerate.

The court’s Eighth Amendment analysis truly is remarkable. Focusing on one of three ways in which the Cruel and Unusual Punishment Clause circumscribes the criminal process—the substantive limits it imposes on “. . . what can be made criminal and punished as such”—the court noted that this application of the Eighth Amendment is “to be used sparingly.”

Despite finding only two U.S. Supreme Court cases that have addressed the question of whether a particular law criminalizes status rather than conduct—Robinson v. California, 370 U.S. 660 (1962) (unconstitutional to criminalize the status of being an addict) and Powell v. Texas, 392 U.S. 514 (1968) (upholding statute that punished public intoxication and not status of being an alcoholic)—the court readily found that the statutory provision at issue ran afoul of the Eighth Amendment, by criminalizing and punishing based simply on the status of indigence and homelessness and not because of any voluntary conduct. It struck down the unconstitutional statute with powerful language.

There appears to be no limit to the creativity of sentencing judges and public officials when it comes to creative punishments for poor people. See e.g., Peter D. Edgerton, “Banishment and the Right to Live,” 74 U. of Chicago L. Rev. 1023 (Summer 2007); “Governor Bobby Jindal Signs Bill to Chemically Castrate Sex Offenders.

One might have thought that our system of justice is well past these phenomena, but it just is not the case. If one buys into in the often quoted principle—“A decent provision for the poor is the true test of civilization.” ~Samuel Johnson, Boswell: Life of Johnson—or any of the familiar variations on the principle, then it is incumbent upon members of the bar to recognize the unjust nature of laws that criminalize or punish with increased severity based on one’s indigent (or other cognizable) status and to take action where we find such laws. As Charles Hamilton Houston, a great lawyer of conscience who laid out the strategy for the landmark cases that beat down segregation said, “A lawyer is either a social engineer or a parasite on society.” The choice is ours to make. The level of justice poor in the system we serve will attain depends on that choice.

Keywords: litigation, civil rights, indigent, poor, homeless

David Schoen is with the Law Office of David Schoen in Montgomery, Alabama.

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