SUNDAY EDITION | Bullitt County "debtor's prison" raises constit - WDRB 41 Louisville News

SUNDAY EDITION | Bullitt County "debtor's prison" raises constitutional questions

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SHEPHERDSVILLE, Ky. (WDRB) – Convicted of receiving stolen property in 2011, George Schmidt Jr. fell behind on his court-ordered restitution payments – and that was enough for a Bullitt County judge to order Schmidt to jail, indefinitely, until Schmidt could come up with the full $1,265 he owed.

There Schmidt sat for more than nine months until an attorney asked for his release in February 2012, arguing that district judge Rebecca Ward's “sit or pay” ruling was unconstitutional.

Schmidt's public defender said the judge had essentially jailed someone too poor to pay, without a hearing or attorney, despite a ruling more than 30 years ago by the U.S. Supreme Court outlawing the practice, which is often called “debtor's prison.”

In fact, Bullitt County judges have for years jailed defendants indefinitely for not paying restitution or certain court fees, according to a WDRB review of cases.

“The Constitution guarantees that people have due process, an attorney and a hearing -- and none of those things are being given to any of these people,” said Jennifer Wittmeyer, director of the Bullitt County Public Defender's office, who represented Schmidt.

It cost the county $32 a day to house each of these inmates, who, meanwhile, are not making any money for their restitution or fees while they are incarcerated, unless they are given work release.

In an effort to halt the practice, last month an inmate named James Hahn sued the Bullitt County Detention Center and its jailer, seeking to overturn a judge's ruling ordering the man to stay in jail until he paid a $375 fee from a 2011 DUI conviction.

 “He is indigent and incarcerated and unable to pay a fine in that amount,” attorney Megan Hubbard, a public defender for Hahn, told Bullitt Circuit Court judge Rodney Burress on Aug. 29, according to a video of the hearing. “So, at this point, he is being indefinitely detained for failure to pay a fine. Our position is this is imprisonment for debt and would be in violation of … the Kentucky Constitution.”

Prosecutors seemed to agree, saying they had no objection to releasing Hahn and that they would instead ask the lower court judge to hold him in contempt for failing to pay. Such a motion would ensure Hahn receives a hearing with an attorney to determine if, indeed, he is too poor to pay.

Assistant Bullitt County Attorney Monica Shahayda, who handled the case, did not return repeated calls for comment. Shahayda's boss, Bullitt County Attorney Monica Robinson, also did not return phone calls seeking comment about the “sit or pay” cases.

Despite the constitutional concerns, defense attorneys say Bullitt County's “sit or pay” rulings often go unchallenged because defendants don't want to risk a judge finding them in contempt, which could mean a sentence of up to 6 months in jail. It's more practical, they say, to try to cut a deal with the judge – perhaps paying a portion of the money owed or at least getting work-release.

Neither Judge Porter nor Ward, the other Bullitt County district judge, agreed to be interviewed for this story.

Instead, the judges issued a statement that did not address the “sit or pay” rulings or any of WDRB's questions.

“We don't believe that it is appropriate for a judge to speak to the specifics of a case, even a case that has been disposed. We can say, however, that the unique facts and circumstances of each case inform and guide our decisions as judges,” the statement said.

Problem is statewide

The unconstitutional “sit or pay” cases aren't unique to Bullitt County, said Ed Monahan, head of Kentucky's Department of Public Advocacy, which represents defendants who cannot afford an attorney.

“It is a big problem in Kentucky,” he said in an e-mail. “Poor people are being locked up for not paying when there has been no willful refusal to pay.”

Asked to name other counties with a sit or pay policy on restitution or fees, Monahan's office provided summaries of cases from other courts across the state but excluded case names or even the county involved, saying defense attorneys may face reprisals if they spoke publicly.

WDRB looked through dozens of “sit or pay” cases in Bullitt County from the past three years and found defense attorneys made similar motions or court arguments in each.

On Dec. 5, 2011, for example, James Lee Warren appeared in court for failing to continue payments on more than $1,600 restitution stemming from a traffic accident.

Judge Ward told Warren that “when that is paid you will be released,” according to video of the court hearing. Warren did not have an attorney present and there was no discussion of why he hadn't paid.

Two weeks later, then-Bullitt public defender Thomas Juanso asked Ward to release Warren, telling the judge “there is no provision” in state law that would allow the court to hold Warren in jail indefinitely on “sit or pay.”

Ward responded that she would allow Warren three hours out of jail each day to look for a job, but did not release him or address Juanso's motion that he was being held improperly, according to a video of the hearing.

That same day, Ward told a man who owed $315 in fees from a drunken driving conviction that he would stay in jail until the money was paid.

When the man asked to be allowed to be released to look for a job, Ward denied the request “because you never work unless you are in jail. Have a seat.”

In each of the cases WDRB reviewed, defense attorneys said the “sit or pay” practice was outlawed by the U.S. Supreme Court in 1983 in the case of Bearden vs. Georgia.

In that case,  the high court ruled a judge cannot send a defendant to jail for failure to pay a fine and make restitution without hearing evidence and finding that he or she could have paid, but “willfully” refuses.

A 1985 Kentucky appeals court ruling is also often cited, in which the court found a judge erred in jailing someone who owed restitution by failing to consider “alternative measures of punishment.”

For example, according to the 1985 ruling, the judge could order the defendant to work for the county or city for a period of time equal to the money owed.

Monahan said judges in Bullitt County and other parts of Kentucky are not following the law because they are jailing people without a hearing or an attorney. In some cases, he said, judges are sending defendants to jail without even making a court appearance or considering alternatives to jail time.

Dan Goyette, head of the Louisville Public Defender's office, said the issue was a problem with a few judges in Jefferson County in the past but “for the most part we now have enlightened judges on the bench in this jurisdiction, and they realize that such policies cost more than they produce.”

Ann Schiavone Dyke, an assistant Jefferson County Attorney running for district court judge, said if a defendant is not paying restitution, a prosecutor will file a motion to revoke their probation and find out in a hearing why the money is not being paid.

The defendant is usually given more time to pay, although eventually the judge can revoke the probation and sentence the defendant to the originally agreed upon sentence from the guilty plea.

Some legal experts theorized the judges may be relying on what is called “civil contempt,” in which a person is ordered to stay in jail until complying with a judge's order. This can be invoked when someone refuses to testify in a case, for example.

However, they say, defendants would still be entitled to a hearing on whether they can pay and alternatives to jail.

Robert Lawson, a University of Kentucky law professor who helped write the state's 1974 penal code, said he has “doubts about the legitimacy” of what the judges are doing.

“It doesn't make any sense,” he said.  “In my opinion they should always have some kind of limit on the sentence.”

Costly for taxpayers

In many of the cases WDRB reviewed, once locked up, the defendant ended up paying at least part of their debt – certainly a benefit to those who were owed money.

"I'm not saying that people shouldn't pay restitution," Bullitt County public defender David Stewart said when asked whether sit or pay was successful in getting restitution or fees paid.  "They agree to pay restitution and there are obvious penalties and procedures to follow if they don't pay. But you can't lock someone up and say 'you'll get out when you can pay.'"

In the Hahn case that went before circuit judge Burress, the judge did not address the legality of putting Hahn in jail indefinitely. Instead, Burress wanted to know why Hahn hadn't paid the court fee.

"He looks healthy; why does he not have a job?" Burress asked. Hahn said he had been battling health issues and was trying to get disability.

Burress told him he would allow the release from jail, but was sending the case back to district court for a possible contempt hearing.

“You look healthy enough to work,” Burress said. “Get a job if you can. This is not insurmountable by any means.”

Burress said that in cases where defendants owe most court fines, under the law they can get jail credit of $50 a day, but not for restitution or DUI fees.

Judge Porter also noted the same thing in an earlier August court hearing for Hahn, where his attorney asked if he could be released so he could work and pay the fee.

Porter told Hahn if he paid $150 toward the fee, she would release him.

Jailer Martha Knox, who was named in the Hahn suit, said in an interview that she must follow the judges' orders. She said she couldn't say how many sit or pay inmates were in the jail at any one time so it is impossible to determine how much the policy has cost the county. (The state Administrative Office of the Courts also does not track these inmates.)

But, take for example the George Schmidt case, where it would have cost the county more than $3,500 to incarcerate him for nine plus months he sat in jail owing $1,000 in restitution.

Bullitt County attorney John Woolridge, who in May defeated current county attorney Monica Robinson in the primary election, said of the practice, “It doesn't serve the taxpayers any good to have somebody sitting in jail taking up space for restitution he can't make.”

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