WMD Law Group News: November 2011

Monday, November 21, 2011

Criminal court deadbeats can lose driver's license

Under a new law that critics say unfairly punishes the poor and disadvantaged, the state can now take driver's licenses away from criminal defendants who fail to pay their court costs and fines within a year of their cases closing.

The law's supporters argue it will allow court clerks to collect millions of dollars a year in fines and fees that are largely ignored. In Davidson County alone, $369.4 million of $423.6 million in assessed court costs and fines went uncollected from 2000 to 2010.

"The taxpayers are having to foot the bill for operating the court system," said Tommy Bradley, the acting Davidson County criminal court clerk and brainchild of the legislation. "The purpose of fines and court costs is to pay all that."

Opponents say the law is counterproductive because it will make it harder for defendants to drive to work and make the money they would need to pay the fees.

"This makes it even harder for them to re-enter society as productive citizens and get their life back on track," Metro Public Defender Dawn Deaner said. "We don't live in New York City. We have a good bus system, but it doesn't go everywhere."

Kalen Jones, who is on probation in Davidson County and owes more than $1,000 in court costs, said he drives to work at a factory job.

"I depend on myself," he said, "so I guess I wouldn't have a way to work."

The law took effect last month and applies only to offenses charged after July 2. The legislation is expected to net the state $5.2 million and local governments $6.5 million a year, according to an analysis prepared by the Tennessee General Assembly Fiscal Review Committee.
Deaner said the clerks should stick to the tools already at their disposal because the new law will unfairly punish poor people, including innocents who have their cases dismissed "on costs," which means the charges are dropped but the defendants are still on the hook for some costs.
Garnishing wages and placing liens on bank accounts also are options available to clerks trying to collect unpaid court costs and fees, but Bradley said that requires working with a private collection agency that keeps more than 20 percent of the proceeds. Last year, Davidson County created a "collections court" docket that forces offenders to appear before a judge and answer why they haven't paid their bill and how they'll pay it.

General Sessions Judge Casey Moreland, who presides over the docket, said that while revoking driver's licenses has its drawbacks, the courts have to try something.
"We feel like we owe it to the taxpayers to try to do something to collect that money," Moreland said. "The bad part of it is, when they lose their license, our citation docket just gets bigger and bigger and bigger."
That's because many people who lose their license will continue to drive anyway and get caught. That will mean more charges and more fines, and critics argue it will trap many defendants in a vicious cycle.

A driver's license "is deeply ingrained in the fabric of your daily existence, and to allow a financial situation to determine whether you lose that or not seems unfair," Nashville defense attorney Patrick McNally said. "I think that just pushes them down further."

'Safety valves'

The law includes provisions that would allow judges to stay the revocation of a defendant's driver's license if that person sets up a payment plan with the court. Jonathan Carpenter, who is on probation in Davidson County and owes more than $900 in court costs, said that kind of flexibility will be key.
"I understand they need their money," he said, "but revoking licenses is just going to make it harder to pay and get people stuck in the system."

Judges also can stay a revocation for 180 days "in case of hardship," but travel would be restricted to employment- or illness-related travel.

"There's all kinds of safety valves," said state Rep. Jim Gotto, R-Nashville, and the legislation's sponsor. "It's not just the hammer comes down."

Tennessee isn't alone in its effort to increase collections of court costs and fines. Facing steep budget cuts, state court systems across the country are experimenting with a variety of solutions.

A new Wyoming law will allow an Internet-based system for collecting court costs and fees to be created and also gives the state's Supreme Court the ability to reduce costs and fees for defendants who pay them electronically.

From The Tennessean August 11,2011


Wednesday, November 9, 2011

Sentencing changes reduce crack cocaine jail terms

Sixteen years ago, Errol Washington was sentenced to more than 20 years in prison on crack cocaine charges -- nearly double what it would have been if it were powder cocaine.

But Washington, 43, may be among hundreds of Middle Tennessee offenders eligible for early release from federal prison after a significant change in federal sentencing policy.

Earlier this month, the U.S. Sentencing Commission drastically reduced sentences for federal inmates convicted of crack cocaine charges. After years of sentencing disparities -- it took 100 times as much powder cocaine to receive similar penalties as for crack cocaine -- the commission is set to release some 12,000 inmates an average of three years earlier.

Tennessee is estimated to have 360 offenders eligible for the sentence reduction, 41 of them in the Middle Tennessee District.

Not all crack cocaine offenders will be eligible, particularly those deemed by the courts to have been involved in a violent crime. A convict must file a motion in court for a resentencing, which will be decided by a federal judge.

U.S. Attorney Jerry Martin said his office still was analyzing potential Middle Tennessee cases and could not comment on the reductions.

Federal Public Defender Henry Martin said the change is a long time coming, but didn't go far enough.

"It's a huge improvement," he said. "What it means is there are people who are serving sentences way too long who will be able to have it reduced to just too long."

1 group punished more

Washington was convicted in 1995 of three drug charges and sentenced to 24 years and seven months in federal prison. Court records indicate that had he been caught with 647.5 grams of powder in Clarksville instead of crack cocaine, he probably would have been released from prison in 2008.

Patrick McNally, a Nashville defense attorney who challenged the crack sentencing laws on Washington's behalf, said the Sentencing Commission finally agreed with arguments he asked the U.S. Supreme Court to hear in the 1990s.

"There really was no greater harm to the public over powder cocaine," McNally said. "The reality was that the enhancement really was sentencing a particular segment of the population, greater than the population that used powder cocaine."

As the violent crack epidemic emerged in the 1980s, Congress passed tough-on-crime laws targeting the drug. In 1986, laws established penalties that could put offenders in prison for up to 20 years for as little as 5 grams of crack cocaine. An offender faces the same penalties, however, for as much as 500 grams of powder cocaine.

Critics have argued for more than 20 years that such harsh sentencing differences disproportionately affected inner-city African-Americans, leading to racial disparities in federal prison. The Sentencing Commission's analysis of eligible offenders appears to back up that assertion: It estimates 85 percent of the convicts who could be released early are black.

"Powder cocaine was favored by middle-to-upper-income Caucasians," McNally said. "Crack cocaine was favored by lower-income African-Americans. ... This 100-to-1 ratio had a real effect of disenfranchising the African-American population."

Money saved

Martin said there also will be a secondary benefit to the sentencing changes: cost savings. The Sentencing Commission estimates that the United States government could save $200 million in the first five years alone once the rules go in place Nov. 1.

The changes significantly increase the amount of crack cocaine to qualify for mandatory minimum sentences. For example, under the old law, it took only 5 grams to be sentenced to a minimum five-year sentence. Under the new rules, it takes 28 grams to be subject to the five-year minimum.

McNally and Martin said the public shouldn't worry about an influx of potentially dangerous criminals back onto the streets. Most of the offenders eligible, such as Washington, are far older than when they were convicted.

"Aging has shown to be a great indicator of reduced recidivism," McNally said.

Indeed, only about 21 percent of the 12,000 offenders nationwide will be eligible for immediate release on Nov. 1, only 56 of those in Tennessee.

From The Tennessean July 28, 2011

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