You are on page 1of 5

November 21, 2012 Michael L. Alston, Office of Civil Rights, Office of Justice Programs U.S.

Department of Justice, 810 7th Street NW, Washington DC 20531 Dear Mr. Alston: This correspondence is sent in response to your October 24, 2012 correspondence. It is my understanding that the Justice Department requests additional information to support charges of race discrimination against Birmingham Municipal Court (DeUndra Bell, 08211205 and Napoleon Williams, 08211532) and Hoover Municipal Court (Chade Evans, 08161157). At the outset, be assured the above-referenced citizens have confidence that the Justice Department is the proper authority to address claims of race discrimination as a result of privatized probation services adopted by municipal courts in Birmingham and Hoover. Your response to their charges gives us hope that social justice may guide the investigation and assure an appropriate remedy. As I further understand your correspondence, the Justice Department is requesting (1) the specific race-neutral policy that these citizens are challenging and (2) statistical or comparative evidence that shows that this policy disproportionally affects African-Americans. As certainly you are aware, each complainant referenced above is an African-American citizen living in Alabama. Because of their limited resources, they are powerless to undertake a full-fledged investigation of two municipal courts. And certainly, the Justice Department is aware that these claimants do not have access to municipal records or financial data although they are aware that each municipality derives millions of dollars each year in court costs, fines, and drug court administrative fees. It is further known that these courts are not supervised by the State of Alabama and at least one court (Birmingham) does not follow the State Court Fee Schedule and previously was the subject to federal court intervention intending to alleviate unconstitutional treatment of indigent citizens incarcerated in the Birmingham City Jail. (See enclosed settlement agreement for Ramsey Lloyd et al. v. City of Birmingham. 06-CV-04856-IPJ). That said, this correspondence will reference documents and recount injustices engendered as a result of alliances between municipal courts and for-profit companies engaged in private probation services that (1) collect Municipal Court fines, costs, and other fees; (2) bills defendants for classes the Court requires to receive probation; and (3) charges defendants monthly probation fees during the period of their probation extending up to two years or more. These private for-profit companies claim that services are provided at no cost to municipal courts. Instead the costs are borne by the probationer who has been assigned to the private company by the Court. Their financial records are generally 1

unavailable for scrutiny although the municipality does receive monthly reports of the monies collected as to fines and court costs. As you will quickly surmise from the enclosed reports, the municipal court has implemented a harsh collection/probation policy that cannot be realistically challenged by indigent citizens who are powerless to curb abuses. The privatized probation policy employed by Birmingham and Hoover to collect fines and court costs and administer probation has resulted in harsh financial penalties, unnecessary costs, and unconstitutional imprisonment. This practice has been likened to a debtor prison in a recent Alabama Circuit Court ruling (July 2012) involving the City of Harpersville. Both the City of Hoover and the City of Birmingham use the same for-profit company, Judicial Correctional Services based in Atlanta, Georgia. These complainants are representative of the hundreds of other African-Americans who have been subjected to this municipal policy of farming out a government function to a for-profit company. There are many attorneys who share our concerns and have provided information contained in this report. Many other attorneys are very much aware of the problems associated with the use of forprofit companies but are reluctant to challenge the practice, fearing their clients will be punished. In addition, some are mindful of the political power of those who promote the practice of privatization of probation. These fears are not unwarranted in light of Alabamas past history of racial discrimination. In 1993, I challenged the longstanding practice of unconstitutional roadblocks conducted to coincide with the annual Footwash Festival held in Faunsdale, Alabama. Law enforcement agencies including the area Alabama Beverage and Control Board conducted roadblocks each year under the guise of an equipment check. Over the decades hundreds of African-Americans were arrested for possession of alcohol in a dry county, where the roadblock was conveniently set up each year. The planned roadblock was coordinated to the extent that bonding companies were pre-positioned at the roadblock where armed police boarded busses and vans en-route to the festival. Litigation in federal court remedied these injustices and we understand that travel for thousands of African-Americans across the South East to Faunsdale, Alabama remain unimpeded as a result of this costly litigation. As I reported to Debra Murphy in your office, the Justice Department in 1993 was unwilling to assist in remedying the roadblock injustices. As you can certainly understand we are particularly heartened today to have a response from this Justice Department as to our concerns regarding the disparate impact of privatized probation on African-American citizens. As I mentioned to Ms. Murphy, complainant DeUndra Bell is the grandson of L.C Bell, the lead plaintiff in the Footwash Festival litigation that cleared Alabama highways of unconstitutional roadblocks designed to harass and impede travel of African-Americans to their annual festival. It was L.C Bell who reported the longstanding injustices in 1993 and it was L.C Bell who reported the injustices experienced by African-Americans in the Birmingham Municipal Court. As mentioned earlier, privatization of probation has spread to other cities and is the subject of much scrutiny from the media, witness the reports of the N.Y Times. (See, Jefferson County Personnel Board Approves Contract with Company Accused of Imprisoning Citizen in Debt reported 7/13/2012.) Social justice cannot be fulfilled when the courts practice a system of unfairness to those who are indigent and politically powerless to remedy the system. Recognizing the clear demographics of Birmingham, these hardships unevenly fall on African-American citizens. Described below are documents that accompany this letter. We will continue to post additional reports on my web site so our community may be fully informed of our concerns regarding the use of a for-profit company to perform the functions of a governmental agency. Such a practice has been implemented without regard to the constitutional rights of U.S. Citizens and without regard to the 2

adverse impact on African-American citizens that comprise nearly 90% of those who are subjected to this practice. We remain grateful for the assistance of many citizens who share information and support. Many of the evidentiary documents have been shared with us with the expectation that their privacy would be assured. Should you send a representative from Washington, we will make available unredacted documents and court records. For many years, the City of Birmingham has received hundreds of thousands of dollars to finance a so-called drug court. In the Citys grant proposal, Birmingham acknowledged that nearly 90% of offenders are indigent and 91% are African-American. The City of Birmingham describes its focus: This project targets Birmingham, Alabama, a poor and dangerous city with one of worst crime rates in the nation..[ranked] 6th for murder. In actual practice, many indigent African-Americans are assigned to this federally funded drug court for such minor violations as loitering and public intoxication and other non-drug related charges. Many offenders, without regard to their indigent status, are charged $1,200.00 for participation in this federally-funded program designed for drug abuse offenders. If the offender leaves the court ordered treatment facility, he may be charged this fee multiple times for the same offense. Additional days of incarceration may also be imposed. On information and belief, the drug court operates without statutory authority or council approval. In addition, the drug court uses forms that deviate from approved municipal court forms and do not appear to have been adopted by the City of Birmingham. Also without regard to their indigent status, many are assigned to classes (illustration: $65, Restorative Justice; $240, Moral Reconation Therapy) managed by a private probation company adding additional costs. (See, Birmingham Caught in the Privatization Trap, reported 8/5/2012.) This same private probation company collects monthly payments from these indigent citizens. It has been reported that many so-called offenders, if in violation of probation for nonpayment, are jailed under no-bond instructions from the Court. There have been reports of additional charges being stacked to existing charges so that probation extends over many years. Numerous instances have been reported that defendants were held in jail for weeks without regard to the citizens constitutional rights. Some are held for weeks on a no bond status. Such treatment is shocking in a court designated as a misdemeanor court and as such has no authority to incarcerate any U.S. citizen without an opportunity to post bond. Those with mental illness are especially vulnerable. A court record reveals that an indigent African-American citizen was no-bonded without regard to a medical statement from his treating physician declaring the patient-offenders inability to benefit from a residential drug treatment program. Additional information about this case and others is available for review upon request. Several files have been obtained from the Court but there can be no assurance that the court has produced complete files. Additional reports from my web site are attached for your convenience. (See, An Unholy Alliance, reported 8/31/2012) Many indigent defendants plead guilty as recommended by the Citys indigent defense lawyers. In an investigation by the Birmingham News, a reporter uncovered questionable payment to private City lawyers up to a $1,000 per day for services for the indigent. (See Birmingham News, April 18, 2011.) It is reported that in more than one instance lawyers pled numerous indigent people each day. (See, The Injustice of Privatized Probation Services, reported 8/3/2012). The City of Birmingham has a history of non-compliance according to a monitors report ordered by the U.S. District Court to address the abuses found in Birmingham Municipal Court. In the Fourth Quarter Report (dated July 2009), the Court Monitor observed instances of incomplete forms 3

which were the basis to impose high fees and lengthy periods of incarceration. According to the report, City did not adopt States schedule of fines and punishment thus allowing the Municipal Court Judge discretion to impose substantially higher fines and punishment ($500 fine and 180 days for any misdemeanor even those minor offenses that do not impact public safety). As a result, many indigent defendants face multiple cases carrying lengthy periods of incarceration with sentences stacked to be served consecutively as opposed to concurrently. It was further reported that it was not unusual to see multiple misdemeanor traffic violations resulting in total sentences of 500-900 days. Such abuses continued through 2012. The Settlement reached with City of Birmingham does not appear to have been honored. For example: Item 3 Immediate review of jailed people to determine if they should be released pending hearing on their ability to pay or to order alternative sentence. The City confirms this deficiency in a grant proposal submitted to the Justice department: offenders typically must wait more than three months from the time they are arrested before they are assessed. Those who are unable to make bail spend this time incarcerated in jail.(See page 2 of Grant Abstract.) Attorneys who practice in the Birmingham Municipal Court contend that the terms of the settlement have not been honored. Item 6 Every defendant must be advised that Court will appoint an attorney if one cannot afford to hire an attorney. This agreement includes any proceedings where incarceration may be imposed including probation revocation. Attorneys remain concerned that defendants are not regularly furnished paperwork assessing their financial status. Nor are they informed of their right to counsel. Many remain unaware of alternative sentencing procedures or other viable alternatives to money fines and jail time. Item 7 City will not automatically convert unpaid fines, costs or restitution to days of incarceration. If converted, City must use state statutory amount for willful nonpayment of $25/day. On information and belief a defendant is currently being held for payment of nearly $17,000 and court costs. He was never offered alternative sentencing or community service. Item 9 City shall accept partial payment on fines, costs, and restitution when tendered by defendants unable to make payment. If defendant is in forfeiture or writ status on his or her payments, Clerk of Municipal Court will take the person to a Judge for a determination of whether the failure to make timely payment is due to indigent status or willful nonpayment. There remains a concern that paperwork is not filed to document defendants indigent status and that the recommendation for incarceration is made by the private probation company. In fact, private bail bondmen are regularly in the courtroom for the purpose of bailing out a defendant who appears in court to pay fines and costs associated with traffic offenses when they are subject to a failure to appear writ. Item 12 If probation is revoked, the court shall make specific written finding as to the reasons for revocation along with the evidence relied upon. If revocation involves willful failure to pay, it should be specified in courts findings. Said findings will be clearly stated in court file. Attorneys practicing in municipal court remain concerned that sentencing is often not based on complete records and in some instances without evidence that the defendant has pled guilty. For example: Tomeka Y., an African4

American, was fined and confined to jail without consideration of her indigent status and without a guilty plea. She owes $9,000 and has a sentence of 90 days to serve in Birmingham Municipal Jail. Item 13. City will have parole board that will review every incarcerated defendant after 1/3 of sentence has been served. There is no evidence that such a Board exists despite the promise made by the Court as part of its settlement of the federal court litigation on behalf of indigent citizens jailed in Birmingham, Alabama. On information and belief, such a board was constituted and later disbanded by the Court after the City employed Judicial Correctional Services. The City nonetheless has a probation service program that is currently under its judicial review branch. In effect, the City runs two probation services: one free to certain citizens and one that charges under the supervision of a private for-profit company. There appears to be no effort made to assign indigent persons to the probation program that is managed by the City without charge.

The City of Hoover Municipal Court also utilizes a private probation company to collect fines and court costs and administer some of the duties normally handled by probation officers. Chade Evans was caught up in the Citys privatization system. (See Gayle Single Mother of Two Fights to Stay Fee of Debtors Prison, 8/6/2012; Free Chade, 8/24/2012; and 10/26/2012.) Chade Evans was never afforded an opportunity to present her case that she was not guilty of intentionally disobeying a court order. Chade was then and is now financially unable to pay the court imposed additional $1600 to the previously paid $1700 dollars for two traffic tickets (following too close and driving without a license). Mrs. Evans is 26 years of age and is presently fighting cancer for the second time in her young life while at the same time caring for her two children following the untimely death of her young husband. The latest filing with the Hoover Municipal Court is attached. She has at the present time is subject to four pick-up orders and lives in fear that she will be jailed during the period of her chemotherapy treatment. The stress is overwhelming for this young mother and there has been no mercy extended to her in Hoover Municipal Court. Please feel free to call and request additional information. Other interested citizens are available as are the complainants. We have been unable to reach the local U.S. Attorney or State Attorney General. Nonetheless, we remain hopeful that perhaps these folks are working behind the scenes. The poor are suffering from the injustices imposed by the very system obligated to ensure justice for all regardless of their finances or race. We remain hopeful that this matter merits the attention of the U.S. Justice Department. It certainly is important to our community and to those who need our support. Sincerely,

Gayle H. Gear