They started lining up for Sherwood District Court at 7 a.m. last Thursday morning, Aug. 25. By 8, the line snaked from the door of Judge Milas “Butch” Hale III’s courtroom, down the hallway, through the atrium, and halfway down another hallway.
Everyone in attendance was there for either a new misdemeanor hot check charge, or for a periodic assessment related to a hot check. It’s like that every Thursday morning in Sherwood, the halls packed with people there to see Hale. Many of those who line the hallways on Thursdays in Sherwood are well into their second decade of paying fines and fees to the court, often on original checks that totaled less than $100, having paid thousands of dollars in fees and fines over the years. Some we spoke to broke down in tears describing the hamster wheel of debt and incarceration they had found themselves on, with any failure to appear or pay resulting in additional fines, court costs, warrants and months-long stints in jail. They described losing jobs, cars, homes, relationships and their hope for the future because of spiraling debt and repeated incarcerations by the court.
Last week, the ACLU of Arkansas, the Lawyers’ Committee for Civil Rights Under Law and Morrison and Foerster, an international law firm with offices across the United States, Asia and Europe, filed a class action federal lawsuit against Pulaski County, the city of Sherwood and Hale on behalf of five plaintiffs, who, according to the suit, were jailed “for their inability to pay court fines and fees in violation of longstanding law forbidding the incarceration of people for their failure to pay debts.” Hale has since recused himself from sitting in judgment over the plaintiffs in that lawsuit. For every other defendant caught in a system the ACLU likens to a modern-day debtor’s prison, the wheel grinds on.
Inside the courtroom, decorated in shades of beige and brown save for a large portrait of Judge Milas Hale II, the current judge’s father and predecessor, it is justice on an assembly-line scale, with defendants queued up behind a rope line before being called to stand before the judge. The longest the reporter saw a defendant talk to Hale — from “good morning” to being dismissed to talk to the clerk — was approximately 45 seconds, with many defendants spending less than 15 seconds before the bench before being shuffled on. When one considers that some of those people rose before dawn and sweated multiple bus transfers from all over Pulaski County to make it to Sherwood for an over-in-a-blink conversation with Hale, it seems like a colossal waste of their time. Nonetheless, defendants told us, if they don’t show up for these cursory appearances before the judge, they are slapped with hundreds in additional fines and fees, along with warrants for failure to appear that can land them in jail. That often leads to nonviolent offenders taking up beds in the Pulaski County Regional Detention Center for months on end, solely because they can’t make it to Sherwood or pay their fines and fees on time.
Given some of the stories we heard, it’s hard to see what goes on in Sherwood on Thursday mornings as anything other than what more than one of those we talked to said it is: extortion under color of law, with the threat of humiliating arrest and incarceration keeping the money flowing. There’s two sides to every lawsuit, but a conversation with a handful of the defendants exiting Hale’s courtroom on any Thursday morning will likely convince even the hardest-hearted among us that Sherwood’s hot check court is a machine that destroys the lives and livelihoods of poor people whose debt to both those they wronged and society has long since been paid in full. Talk to enough of them, and you might even get the distinct impression that it’s a system set up to make people fail. Why? Because, in this case at least, failure is where the money is.
Inside the machine
To understand how the system in Sherwood was allowed to thrive for so long, you have to go all the way back to the mid-’70s, when cities within Pulaski County informally agreed that all of the county’s bounced check cases would go through Sherwood. As outlined in the ACLU lawsuit, hot checks have long been big business in Sherwood, and an ongoing cash cow for Pulaski County in general. That has continued even after most Americans switched from a checkbook to a debit card. Sherwood handles between 22,000 to 25,000 hot check cases per year, and has collected over $12 million in fines, fees and court costs in the past five years. In 2015, the total of fines collected was $2.3 million, which amounts to over 11 percent of Sherwood’s total revenue. In Sherwood, hot checks are a moneymaker second only to sales taxes.
Reached at his law office, Hale refused to answer questions about the allegations in the lawsuit or about his courtroom procedures, citing the pending litigation.
According to the ACLU lawsuit, the hot check cases in Sherwood result in what the complaint calls “an astounding number” of criminal cases and warrants. “For example… as of March 2011,” the complaint reads, “there were over 49,000 active hot check cases in the Sherwood District Court’s criminal division, which is approximately one hot check related criminal case for every eight citizens — men, women and children — living in Pulaski County at that time.” As further noted in the lawsuit, the Sherwood Hot Check Division issues over 35,000 warrants related to hot checks every year. That’s 96 per day, every day of the year.
Four plaintiffs in the ACLU lawsuit are either incarcerated in the Pulaski County Jail now or have been jailed for debts owed the Sherwood court. Nikki Rachelle Petree, 40, wrote a check for $26.93 in September 2011; though she has paid $640, a sum the suit said she could ill afford. Her current debt of $2,656.93 in court costs, fines and fees has landed her in the Pulaski County Jail. Charles Dade, 58, is in the Pulaski County Jail because he is unable to pay the estimated $4,000 in court costs, fines and fees imposed by the Sherwood court for six checks totaling about $360 that were returned for insufficient funds in 2008 and 2009.
Plaintiff Nikita Rochelle Lewis, 36, was convicted for hot check misdemeanors by Hale in 2006. Since then, she has paid hundreds of dollars, the suit says, to cover court costs, fines and fees and has been jailed for almost 80 days in the past. Because she was unable to pay the $4,892.80 Hale’s court said she owes, she was recently incarcerated in the Pulaski County Jail. Lee Andrew Robertson, 44, wrote 11 checks totaling $200 over a two-week period in 2009; he was recently jailed because he cannot pay his $3,054 debt.
The fifth plaintiff is taxpayer Philip Axelrod, 68, who is bringing an illegal exaction claim on behalf of the class against the court, charging it misused and misapplied tax funds by its unconstitutional actions.
When a person bounces a check and is referred to Sherwood District Court, Hale generally sentences the offender to probation, in addition to a number of fines and fees. These include restitution of the original check amount, a $165 fine, $100 in court costs, a $25 prosecutor’s fee, a $50 warrant fee, a $20 Sherwood jail fee and a $20 county jail fee.
“Thus,” the complaint says, “the court costs, fines and fees associated with a hot check conviction, regardless of the amount of the unpaid check, exceed $400.” This amount is due immediately. If the person can’t pay, they’re put on a payment plan, with defendants assigned a court date for a “review hearing” one to three months out.
When defendants are unable to pay on time or make their court dates, fees and fines can begin to spiral out of control.
“Following a hot check conviction,” the complaint says, “[Sherwood District Court] treats each review hearing based on this prior conviction as an opportunity to open a new, separate, stand-alone case, thereby purportedly authorizing the court to impose new and duplicative court costs, fines and fees on the same hot check defendants.” Every time there’s a failure to pay or failure to appear, a new arrest warrant is issued, and the defendant is charged with “a new, stand-alone criminal matter under a separate case number, with a whole new set of associated court costs, fines and fees,” even though the warrants don’t include information to establish that a crime has been committed.
“By treating each of these proceedings as a new criminal proceeding,” the complaint reads, “the Sherwood District Court can circumvent the limits on court costs, fines and fees that can be imposed on a single hot check defendant.” Several defendants we talked to said $370 is added to their debt every time they fail to appear or make a payment.
According to the lawsuit, Hale acts as both judge and prosecutor in the new hot check cases that come before him, with Pulaski County deputy prosecutors assigned to the court sitting by passively as Hale asks defendants questions. In most instances, according to the lawsuit, Hale personally presents those who come before him on new charges with a copy of the check they allegedly wrote.
“If the individual admits to writing the check,” the complaint says, “Defendant Judge Hale records that the hot check defendant pled guilty to the charge.” If the charge is denied, Hale will personally compare the signature on the check with the signature on forms signed by the defendant to determine if they match.
Several of the people we talked to deny that they wrote the checks they were accused of passing, saying that their checks were stolen and forged. In one case, a woman we talked to said her checks were filled out and signed in cursive, even though she only prints. She said her contentions were disregarded by Hale.
According to the lawsuit, those waiting in line outside the court on new hot check charges are usually given a “waiver of counsel” form along with a form asking for basic information, then told that they must fill out and sign both before their hearing can proceed.
Though Hale was allowing spectators into the gallery of his court, including reporters and a camera crew, when Arkansas Times visited two days after the ACLU lawsuit was filed, the lawsuit claims that the courtroom is normally closed to all but defendants, prosecutors and court staff. “Although the ‘Waiver of Counsel’ form refers only to hot check charges,” the lawsuit states, “court officials will often proceed as if anyone who fills out the form has waived his or her right to counsel for all purposes, even if the person is appearing on other types of charges or for other purposes.”
The Pulaski County Public Defender’s Office doesn’t represent defendants in the court. Instead, a private attorney working on contract does the job, though the lawsuit says because of the waivers of counsel, the public defender represents few clients.
For those defendants who repeatedly fail to appear or can’t make their payments, many wind up in the Pulaski County Regional Detention Center. Some of those we spoke to had been incarcerated multiple times, for as long as 120 days. According to the lawsuit, Hale and the Sherwood Police Department often use the threat of jail or actual stints in jail to force poor defendants to pay, with Sherwood police officers acting as collection agents for the court. As spelled out the lawsuit, what occurs when Sherwood cops make contact with a defendant who is behind on his or her payments sounds less like justice and more like a shake-down.
“The officers tell the individual that they will arrest them on a warrant issued by the Sherwood District Court unless the individual can make a payment, in amounts ranging from $50 to hundreds of dollars, on the spot,” the lawsuit says. “If the individual can afford to pay, the officers will give them a court date instead of arresting the individual. An individual who does not have enough cash to pay is given the opportunity to call the Hot Check Division directly and give a credit card number over the phone. The poorest individuals, who cannot pay, are arrested and brought to jail.”
According to the lawsuit, Sherwood police records say their arrests on “failure to pay” warrants are conducted under a state statute that was repealed in 2009.
Last Thursday, we caught Richard Green Sr. coming out of the courtroom after a brief appearance before Hale. Since passing a hot check for less than $100 in 1998, Green has been trapped in a spiraling web of debt and jail. He pays $200 a month. Green said he has been sent to jail five times on warrants related to his 1998 hot check charge, spending a total, he claims, of 405 days behind bars over the years. Disabled because of a bad back, Green said the payments to the court make life hard.
“I’ve probably paid thousands and thousands of dollars. I have lost everything because of this … . It’s just a revolving cycle I’m on. You never know when you’re going to get it paid off. It’ll seem like you’re going to get it paid off, but you don’t get it paid off. You think it’s going down, but then it’s going back up on you. You never get through paying.”
Another person there on Thursday was Tamatrice Williams. She has been paying fees and fines to Sherwood for 16 years on bounced checks she said totaled no more than $300. She has also paid thousands in fees and fines over the years.
“I had maybe three checks that were insufficient funds,” she said. “I didn’t realize it, and I had to come to court here. I tried to go buy the checks back, but they wouldn’t let me do it. I had to come here. Basically, it’s just been ongoing ever since. It went from $35 to $40 all the way up to thousands of dollars. I’ve been jailed seven to eight times. I lost my home, cars, jobs, everything over the situation.” The first time she’d ever been to jail came after she couldn’t pay in hot check court; she stayed there for three months.
After Williams went before Hale last Thursday, she came out weeping and clearly shell-shocked, saying that the judge had inexplicably wiped her slate clean and told her she was free to go after 16 years. She stood outside the Sherwood municipal complex and cried with others there for hot check court, some of whom she had become acquainted with after seeing them every few months for years.
“Oh my God,” Williams said. “I feel so free now. I’ve never been in trouble before, never been in jail before. This is it. I haven’t even had a traffic ticket before.” Asked why she thought Hale had decided to nullify all of her remaining fines and fees, she said she didn’t know.
“I have no idea, but I’m thankful right now, and I’m definitely grateful now because I feel like I can do whatever I want to do right now,” she said. “I’ve got my freedom back. I’ve finally got my freedom back. I can finally live my life with my husband and my kids.”
One of those who embraced Williams was Shirley Ann Kirklin. Her original charges stem from checks written in 1997. She said she has paid almost $7,000 to the court, but her paperwork shows she still owes $904.98. She questioned why Hale asks people to come to court even if they’re up to date on their payments.
“Even when you’re paying the fine, he wants to see you in front of him,” she said. “Why do you have to leave your job to come in and you’re steady paying? … He’s got all the proof in there in front of him. So why are we steady coming to court if we’re paying? We’re paying you to not pick us up. We’re steady losing jobs, we have to get out, still support our family, but we’re still being faulted for the same charge.”
Kirklin said she had been to jail six times on warrants related to fines and fees associated with the 1997 charges, with each incarceration causing her to lose a job. “We ain’t robbing and stealing and killing, and we’re in jail?” Kirklin said. “We’re paying a life fee for nothing. It’s devastating. This has really caused hurt to relationships. We don’t know if we’re coming or going. We don’t know what’s right anymore. … I think it’s legalized extortion. Seems like there’s something going on up under the table. I can’t put my finger on it, but paying the fine for the same crime over and over again and you’re still paying? I’m going to be paying this for the rest of my life.”
Also appearing before Hale last Thursday was a young woman we’ll call J, who asked that her name not be used for fear of retribution from the court. She said she had driven in from seeing her family in Oklahoma the night before specifically to appear before Hale the following morning. Her conversation with Hale lasted less than 30 seconds. J said her original charges stemmed from a 2010 incident in which she claims her purse was stolen. She denies writing the hot checks for which she was later charged, but said Hale didn’t believe her claims when she brought them up during her first appearance before him. J said she’s paid almost $5,000 to the court in fines and fees and still owes almost $3,500.
J, who said she’s heard Sherwood court staff and cashiers refer to hot check court as “Million Dollar Thursday,” said she’s been in jail three times on warrants out of Sherwood, the longest stint 120 days. The last time she went to jail, J said, sheriff’s deputies came to the college class she was taking at the University of Arkansas-Fort Smith, handcuffed her in front of her classmates, and marched her to a waiting patrol car. After being held for six hours without being allowed to call her family to tell them where she was, she was transported to the Pulaski County Regional Detention Center. She said she moved to Little Rock from Fort Smith specifically to make sure she made her court dates in Sherwood, for fear of going to jail again.
“I think once you’re on their radar, you have a target on your back,” she said. “They want you to fail, because they see you as money. You’re a price tag to them. That’s the only way to see it. … If you miss anything, he charges either $340 or $370, but he hits you every month for it. I was actually reading the other night in my paperwork, because I was confused. I didn’t remember when I went to court. And it actually says that once he sentences you to jail time, you actually have to pay a fee for going to jail. You’re charged for him sentencing you. With him, the restitution, until you’ve paid off the original balance of the check and the money to the court or to the state, you don’t get your $40 a day [subtracted from fines] for being in the county [jail]. You’re just in time out. You lose your job, you lose money, you lose cars. It’s really a hassle.”
While J says she believes Hale to be a good man who wants people to avoid re-offending, she doesn’t believe he understands the hardships he’s putting on people with the spiraling fines and fees from the court. She hopes the ACLU lawsuit will change things.
“I was standing in that line, and everybody was talking about it,” she said. “I think the root of the problem is that we shouldn’t have done it in the first place. But we should be treated like humans. Once you get in over your head, you can’t keep above water.”
Another story we heard came from John Bowman, a former Little Rock resident we reached through an acquaintance who saw a version of this story on the Arkansas Blog. Bowman, who has been completely blind since 1968, said he is currently in hiding outside Pulaski County because he owes over $4,200 in fines and fees to Sherwood District Court, stemming from a check for $23 written to Little Rock’s Cork and Bottle liquor store in 2010. Bowman said he has paid between $700 and $800 in fines and fees, but couldn’t make his court appearances or pay his payments regularly because of his disability. That resulted in his debt to the court growing out of control.
Bowman said that because of his blindness, he signs checks for others to fill out and pay his bills. He believes the check eventually written to the liquor store was stolen from him after he signed it, but he accepted responsibility for it because he couldn’t prove it. Bowman, who claims he was gravely ill at the time the check was written, says he didn’t learn about the warrant out for him from Sherwood until he had someone open his mail in February 2011.
Bowman said that once he learned of the warrant, he tried to make his court dates, but often had a hard time doing so because he takes the bus. He said even light rain makes it hard for him to hear oncoming traffic, which makes it dangerous for him to cross streets and intersections during storms, especially those streets which are unfamiliar to him. He said even on days when it wasn’t raining, bus schedules in the morning made it impossible for him to get to court on time.
“At the time this check was written, I was living [on Markham Street], and in 2012, I moved to my son’s over on Reservoir,” he said. “My bus leaves at 6:38 in the morning. By the time I got downtown, it was 7:04, and I’d already missed the bus to Sherwood.”
Bowman tried to stay above water, but found himself getting deeper and deeper into debt. “When I could make it, I would pay $50 a month like it says in my instructions,” he said. “But when I tried to pay the fourth month, they said, no, you can’t pay again. They said it was because I’d missed my date. Excuse me, but I said, ‘This is horseshit.’ Not to them. I didn’t know what to do.”
On the occasions when he could make his court appearances in Sherwood, Bowman said, he never talked to Hale more than 30 seconds. “He takes a look and says, ‘OK, make sure you make your payments.’ Boom! I’m out of there. I said, ‘Damn, I went through all of this for 15 seconds?’ ” Bowman said. “He’s moving too fast. We’re in and out of there like cordwood, like wood going through a lumber mill. Boom, boom, boom! It’s not justice. They say this isn’t debtor’s prison? Bull.”
Bowman says he fled Pulaski County after being repeatedly “picked up” on warrants out of Sherwood while out walking in his neighborhood. Because he’s blind, concerned motorists often call police requesting a check on him when he’s walking near highways. When police respond, they run his warrants. Bowman said he’s been transported to Sherwood five to eight times since 2011, where he was locked in Sherwood’s holding cells for more than three hours while his paperwork was prepared. After his release, he said, he had to catch rides back to Little Rock.
He says he’s currently trying to save up the money he owes to Sherwood so he can pay the district court off and move back to Pulaski County. “I’m in hiding now, hiding from them, so they can’t come and get me and serve me another warrant,” he said. “I’m in hiding until I can get $4,800 saved up. Then I’m going to turn myself in. I don’t dare call.”
North Little Rock attorney Reggie Koch, a former Sherwood police officer himself before going to law school, is helping represent plaintiffs in the lawsuit filed over Sherwood’s hot check court and its practices. Walking along the line snaking away from Sherwood District Court last Thursday, he said that in his experience, it was “a light day.” Some Thursdays, he said, the hallways can be standing room only. Koch said that during his time there, he often heard Sherwood warrant officers refer to themselves as “bill collectors with guns.”
Koch quit the department in 2002 and later became a plaintiff in a federal lawsuit against Sherwood, in which he alleged that the Sherwood Police Department retaliated against him for speaking out about racial discrimination. That suit was eventually settled out of court. Koch has since successfully sued Sherwood on behalf of other employees.
“This is all about money,” Koch said, motioning to the long line outside Hale’s court. “This isn’t about justice. It’s just about money. This building here? The buildings across the way? All this you see? They’ve paid for it with this right here. They didn’t pay for it with traffic tickets or taxes. Just this.”
Koch said the system at Sherwood unfairly victimizes the poor. “You cannot put people in jail just because they don’t have money. That’s what this amounts to,” he said. “If you have a business and you’re going to give me your widgets and take my piece of paper [in exchange], that should be between us. It’s a civil matter. What if I go to you and say, ‘Can I borrow $50 or pay you for this stuff later?’ That’s called credit, and we handle it through the civil courts. We don’t go with guns and handcuffs. That’s what this ought to be. This still being a crime is just resulting in debtor’s prison. That’s all this is. These people owe a debt and they’re going to jail for it.”
Though some will liken writing a hot check to shoplifting or other theft, Koch says that the comparison isn’t valid. “If I go in and steal something, the [store owner] didn’t have a chance to be part of the bargain,” he said. “If I walk in and shove something under my coat and walk out with it, they’re not part of the bargain. But here, I say, ‘I’m going to take this coffeemaker, and I’m going to give you this piece of paper and it’s good. I’ll make this right with this piece of paper, and you agree to that. That’s arm’s length bargaining. It’s not like stealing.”
Koch also disagrees with Sherwood District Court’s waivers of counsel for hot check clients. In most other courts, he said, waiving the right to counsel isn’t as easy as signing a form. “Over in circuit court, you have to stand up in front of the judge and let him ask you some pointed questions,” he said. “It’s not some piece of paper you sign when you walk in.”
Several people approached Koch last Thursday morning, sharing their stories and contact information with him in hopes of getting some help. He said when he worked there as a cop, he barely even noticed the people who came for Thursday court. He sees things differently now. “When I was a police officer, I used to come through here and look at these people and just thought they were scum. I thought, ‘Just get a job.’ Life taught me different.”
Bettina Brownstein, another Little Rock attorney working on the case on behalf of ACLU of Arkansas, said the Sherwood hot check court and its procedures were an open secret among the local legal profession for years. She said the number of people who knew what was going on there but did nothing is what bothers her the most.
“I’m just horrified and saddened by the fact that we all let this go on,” she said. “Believe me, we knew more or less, about it. Maybe some of us knew it to a greater degree than others, but so many people knew: lawyers, judges, citizens. And we didn’t do anything to stop it.”
She called that fact an “indictment” of the community. “I’ve heard about lawyers in Pakistan going to the streets to protest crackdowns on civil rights,” she said. “Where are we? Where’s our profession? Where’s the Judicial Commission on Professional Conduct? To me, that’s one of the most telling things.” Brownstein said there existed “an inertia to not do anything” that kept people from acting, along with a fear that crossing a judge might affect their livelihood.
Now that the stone is moving, Brownstein said that people have been calling and stopping her in coffee shops to tell her about their experiences in Sherwood District Court after bouncing a check. She said the best case scenario would be for the federal court to immediately step in and stop Sherwood’s practices related to hot checks. She also said she believes Hale should be removed from the bench.
“I don’t think that Judge Hale should be a judge anymore,” she said. “I think he’s really forfeited any credibility that he might have. The other thing is I think the city of Sherwood should have to pay back lots of money. That would really be the best. That would be some justice in my view.
Brownstein said that now the case in Sherwood has been brought to light, it should put other courts around the state on notice if they’re doing similar things.
“I’d like them to know we’re going to start looking at them, too,” Brownstein said. “We’re not going to rest until we get all of them.”