Gateway journalism review - 2016

The muni court shuffle

Illustration: Steve Edwards

Illustration: Steve Edwards

By William H. Freivogel

-- Municipal Judge Daniel Leslie writes in an email he has no sympathy for a nursing assistant and mother of nine locked up for failure to pay traffic fines.  She needs to “keep her legs together,” he writes, suggesting sterilization as a remedy.

-- Another judge draws laughter at a convention of 300 municipal judges at the Lake of the Ozarks with a joke about how cities position police to issue new tickets to citizens before they can even leave the parking lot after paying old tickets.

-- Kinloch municipal court features a cardboard box where fines -- cash-only -- are collected and dogs are on hand to keep order.  People huddle in their coats in the winter because the court meets in an old, rundown elementary school without heat.   

-- Donna Pierce, a 26-year-old mother of two, is arrested after leaving a Walgreen’s parking lot with her vehicle’s lights off.  Police cite her for other traffic violations and she is held on $650 bond.  Her car is impounded and she ends up having to take a cab to get to work on time -- otherwise she fears she’ll be fired.

These are some of the scenes described by lawyers who led the effort to reform the municipal courts in St. Louis, which have been likened to modern-day debtors’ prisons.

Lawyers at ArchCity Defenders and St. Louis University law school, who have led the reforms, recounted the injustices they have witnessed in the courts and callous indifference among some of the municipal judges. 

They are impatient with St. Louis County Presiding Judge Maura B. McShane and the Missouri Supreme Court for going slow on municipal court reform.  Both McShane and the court have the authority to impose higher standards of justice in municipal courts, they said.  But two years after Michael Brown’s death triggered a new look at municipal courts, McShane and the Supreme Court have not taken those steps.

Instead, McShane has relied on the Municipal Court Improvement Commission headed by municipal court judge Frank J. Vatterott.  The reformers credit Vatterott with improvements but say the efforts have fallen short.  Professor John Ammann and Brendan Roediger of Saint Louis University Law School and ArchCity’s Thomas Harvey favor abolition of the 80-plus St. Louis County municipal courts, with traffic cases and municipal ordinance violations going to associate circuit court or the regional county municipal courts that handle cases in unincorporated jurisdictions.

“They need to be abolished,” says Harvey.  He also calls for the end of cash bail that often traps poor, mostly black traffic violators in jail.

“Poor black men and women (are ) being arrested by a largely white police force, pulled off the street and jailed, thrown in a cage and told if you come up with $500 in cash we are going to let you out and if you don’t we’re going to keep you here indefinitely.   We’ve had five people either kill themselves or try to kill themselves since December of 2014, many of whom were being held on what we call the muni shuffle.  By the time they got to jail number three, nobody had any money anymore and they were just sitting there.”

Catch 22

Harvey describes a Catch 22 that traps some poor violators in jail:  Because the state doesn’t seek jail time for traffic violations, a person is not entitled to a public defender.  But people are locked up if they have no bail money.  If they want a bail review, they need a lawyer, but that gets back to square one.  They can’t have a lawyer because there is no possibility of a jail sentence.

So the person sits in jail because the offense is not serious enough for jail. 

Harvey says this is an absurd situation considering the people haven’t committed crimes.  And there are consequences.  People lose their jobs, their apartments, their families.

“Fundamentally we haven’t changed from wanting to punish poor people for being poor….if you are charged in a municipal court you are by definition not a threat to the community, so why would this ever end in jail?  We’re talking about traffic tickets. These aren’t crimes. We’re not talking about rape, murder and robbery.

There are no official figures for the number of people who are locked up in muni jails without having committed crimes, but lawyers say it numbers in thousands. Roediger recalls deposing former Ferguson Police Chief Thomas Jackson and asking how many of the 10,000 people locked up in the Ferguson jail over the past five years were there after having been sentenced for a crime. “He said, ‘Oh yeah, it happened one time.”  In other words, the other 9,999 people in jail were not there for crimes, says Roediger.

Michael Wolff, who was on the Missouri Supreme Court before he was dean at SLU, said McShane and the Supreme Court have power to act.  “I think the presiding judge can set minimum standards.  I think some of them are hoping that the Supreme Court will do that, but if that doesn’t happen it might fall to the presiding judges of the circuits to do that kind of standard setting……The constitution says that the presiding judge of the circuit shall administer all the courts….I don’t see how Judge McShane or her successor is going to administer a court that has 90 some divisions.”

The law professors were also disappointed by last spring’s weak report by the Supreme Court’s Municipal Division Work Group, which was tasked to recommend reforms.  The Group went out of its way to oppose a legal settlement with Jennings that is seen as a model of reform.  The Jennings settlement includes elimination of cash bail and no warrants or jail time for failure to pay fines. The Supreme Court Work Group said these steps went far beyond what is constitutionally required.  

Work Group report:

https://www.courts.mo.gov/file.jsp?id=98093

ArchCity on Jennings settlement:

http://www.archcitydefenders.org/2015/09/07/acd-slu-law-and-equal-justice-under-law-reach-agreement-with-jennings-end-of-cash-bail-reform-of-municipal-courts/

Wolff and Roediger think McShane should visit some of the muni courts to get a first-hand idea of how they work.  She might, they say, visit the Kinloch court with the cardboard box of cash that Roediger observed.  His client’s traffic ticket hadn’t included the address of the court.  Once Roediger found the court by asking around town, he discovered the court was guarded by officers “armed to the teeth” wearing “black special ops uniforms that they got on Amazon or something.  And the dogs these big dogs were not police dogs, just big dangerous dogs.”

Vatterott has a less expansive view of court authority. “There is no case law I am aware of which thoroughly discusses the breadth of supervisory authority of a presiding judge,” he wrote in an email. “I do think the SC can set minimum standards, so long as they have to do with the judicial process. …My own view is that since cities have been given the constitutional power to conduct their own courts,  the Supreme Court has only the right to demand the city courts follow the statutes, court rules and the rules of judicial ethics under threat of removing the judge, but not the right to consolidate courts that operate within those laws and rules.”

 

Ridiculing the poor

Ammann, who runs the litigation clinic at SLU, was shocked last summer when he attended the convention of municipal judges at Vatterott’s invitation.  Ammann was there to explain reforms that had been enacted.

“They asked, does it (the reforms) really say we have to take people’s poverty and income into consideration and I said, ‘Hell yes it does.’”

Then, “a very prominent judge made a joke about, ‘Yeah on our docket we get people for driving without a license and we have our cops on the parking lot and when somebody takes care of their ticket….and gets into their car we stop them and give them another ticket.’”

The 300 people in the room “erupt in in laughter, like that’s funny. It was embarrassing. I was embarrassed for the profession,” Ammann.

Vatterott, who invited Ammann, thinks Ammann misinterpreted the comment.  “The story of the police re-ticketing a defendant has been told before, when people who don’t have a valid license come to court, plead not guilty, then are arrested when they drive off the parking lot for driving without a license. Some lousy courts did that in yesteryear.   Vast majority of courts don’t do that, and the context of the question, and the laughter, was not that the person was poor, but the audacity of the police.  There are many people who are not poor who drive illegally.  John, I believe, misinterpreted the context as an attack on the poor, and neither I nor anyone else I spoke to thought it was an attack on the poor, but a comment about those who flaunt the law of licensure.…There were a few judges whose tone and comments to Professor Ammann I did not like at all, but aside from a few there was civil discourse with judges from all other the State on some hot, controversial issues.”

Roediger wasn’t surprised by Ammann’s story.  He read from an email Judge Leslie, had written to him last year criticizing a plaintiff in a lawsuit filed by ArchCity Defenders.  Leslie is listed as municipal court judge in four towns Pacific, Wayne, Gerald and Gasconade County. 

In the email, Leslie told Roediger that he is anxious to have a “rational discussion” about improving the courts, but he did not sympathize with some of the plaintiffs in lawsuits ArchCity filed against Jennings and Ferguson.  He singled out a nurse’s assistant who spent days in various municipal jails for failing to pay fines she couldn’t afford.  The reform lawyers call this the “muni shuffle” when a person with unpaid tickets settles up in one municipality only to be transferred to another and then another - meanwhile losing a job or an apartment.

http://www.nytimes.com/2015/02/09/us/ferguson-one-of-2-missouri-suburbs-sued-over-gantlet-of-traffic-fines-and-jail.html?_r=0

But Leslie said the nurse’s assistant was to blame for her own problems. “I feel no sympathy for KF, a 37 year old mother of 9 kids.  This is stupidity,” he wrote.  “She needs a lesson on how to keep her legs together.  I venture to say that a large amount of you and I’s (sic) tax dollars are going to pay for food and housing for her children.  Why am I paying for her to have 9 kids.  I have 2 because that is what I can afford.  Please convince me that it is my responsibility to support KF and her NINE children?  Don’t give me some ‘poverty’ sob story.  Having 9 kids is a choice.  I can see one child out of wedlock, although I cannot agree with it, but NINE!  She obviously needs more help than just legal help for traffic court.  She needs sterilization.”

Vatterott said he didn’t know Leslie but added, “I strongly disagree with his comments, and just as importantly, his decision to comment at all.”

Leslie did not respond to a request for comment.  The Missouri Supreme Court did not respond to a request for comment on the slow pace of reform or on Judge Leslie.  Judge McShane did not respond to a call for comment.

 

 

Getting attention

Harvey began representing people in homeless shelters in 2009.  “We found the legal system was creating serious obstacles to people getting into housing, treatment and jobs….The biggest problem was municipal court.”

But getting attention before the death of Michael Brown was difficult. Potential funders would say “this isn’t important enough. We’re looking at felonies and jail reform.”

This was another Catch 22.  The traffic tickets were so minor that funders didn’t think they were important.  Yet people’s lives were getting wrecked by being jailed when they hadn’t committed a crime.

When Brown died, Harvey at first “didn’t think that much of it.”  There had been a similar killing about six weeks earlier.  “Unarmed black men are killed everyday in America and it’s not newsworthy.” 

But he saw the story was persisting on Twitter and protesters were saying police have been doing this forever to black people -- just what he had seen in the municipal courts.

“If you see this as the outgrowth of 50 years of overpolicing and hostility and racism, both systemic and individual racism, this response is foreseeable….  The only people who didn’t know it was happening was middle class white folks…..  The courts are at night, lawyers go the the front of the line…  People don’t know what’s going on.”

At the time of Brown’s death, Harvey had a report on his desk documenting the devastating effect of municipal courts on people’s lives.  ArchCity published the report the next week and suddenly municipal court reform moved to center stage in the Ferguson response.  Eric Schmitt, R-Kirkwood, introduced SB 5 that reduced how much revenue municipalities could generate from traffic cases.  The bill also included new civil rights protections. 

The bill passed even though, ironically, some black politicians opposed it because black-run munis relied most heavily on traffic revenue.  

“The municipal court reform movement spoke well to conservatives,” said Roediger.  “ It was easy to talk about it and erase racism from the equation….  This is a public corruption problem not a race problems.”

Rich McClure, the co-chair of the Ferguson Commission and a former chief of staff to Republican Gov. John Ashcroft, “played a very big role” in getting SB 5 passed, he said.

 

Looking ahead

One major legal setback this summer was the U.S. Supreme Court’s decision approving prosecutions that begin with unjustified stops.  It was as if only Justice Sonia Sotomayor had read about Ferguson.  The court ruled over Sotomayor’s passionate dissent, that even if police did not have legal reason to make a stop or search a car, the arrest and prosecution would be legal if they found drugs or other contraband in the car.

“One of the primary problems with this system,” says Roediger, “ is that it encourages really bad policing.  If you pull over a car with four 20-year-old African-American men, knowing that there are 420,000 outstanding warrants in St. Louis County, the chances are that one of them will have a warrant.”

Wolff said the chances “are approaching certainty.”

Ammann said he also is disappointed that municipalities such as Ferguson that had charged an illegal “warrant recall fee” of $65 to $85 haven’t returned the money.   

“Every city we have approached has repealed their warrant recall fee,” he said.  “But what they didn’t do is give the money back. Ferguson and other cities were stealing money from young black men…because of these illegal fees….  It’s millions and millions of dollars that was sucked out of the north county community. Give the money back.  This was money that could be spent at Target.” 

Roediger and Harvey stressed the importance of the cadre of young African-American activists who were inspired by Ferguson.  “In the end, the most important thing to come out of this is a core group of about 30 to 50 young black activists who continue to do the work 80 to 100 hours a week, the folks who organized the circuit attorney debate, like Kayla Reed.”

Harvey adds, “It is a pretty amazing moment when they can say we don’t want Jesse Jackson or the NAACP.  If you’re a 25-year-old African-American man or woman living in North St. Louis County, you are simultaneously aware of the achievements of the civil rights moment…but your liberty and your movement is constantly under surveillance.  You’re being jailed because you can’t pay fines; you are being arrested all the time for minor traffic violations; you are unable to remain employed because of that interaction with law enforcement.  You are likely to be going to…a failed education system.  Jobs are not readily available in your community.  What exactly should you be thankful to those leaders (Jesse Jackson) for?

Roediger is annoyed the system never gives young activists a win.  He points out that Circuit Attorney Jennifer Joyce tweeted her criticism of the circuit attorney debate that Reed had organized, calling Reed a person who wanted to blow up the system. 

“They organize 300 people, but Jennifer Joyce stays home and accuses Kayla Reed of being too radical….  So in the end no matter what you do there are going to be no victories.  So when somebody like Josh Williams tries to start a fire at a gas station…why wouldn’t he think (the) thing that got people’s attention was the flames coming out of the QT.”    

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