By Dan Christensen, FloridaBulldog.org
A letter from the U.S. Justice Department urging state judges across the country to eliminate “common” court practices that illegally trap poor defendants in cycles of debt and jail is reverberating in Broward with accusations that courts here favor the well-off.
Broward Public Defender Howard Finkelstein once again is leading the charge for systemic reform as evidenced by a series of testy recent written exchanges with Broward Chief Judge Peter Weinstein. Among other things, Finkelstein wants the courts to scrap the use of so-called “convenience bail bonds” the poor often cannot afford, and accuses judges of fostering a “double standard” of justice by ignoring the disparate treatment of minorities and the indigent.
“This jurisdiction’s practices have effectively institutionalized racism by disproportionately incarcerating poor minorities for decades,” Finkelstein concluded Sept. 2 in his most recent letter to Weinstein.
In an interview on Friday, Weinstein replied, “I don’t know where he gets that from. Every judge ascribes to the saying that justice is blind and ignores race, creed, national origin and gender in ruling. Howard can absolutely write what he wants, but that doesn’t necessarily make it so.”
The Department of Justice’s March 14 letter, signed by Deputy Assistant Attorney General Vanita Gupta, followed a gathering of judges, court administrators, lawmakers, prosecutors, defense attorneys and others last December to discuss fines and fees imposed by state and local courts. The letter said the convocation, held in the wake of the department’s investigation of racially troubled Ferguson, Missouri, “made plain that unlawful and harmful practices exist in certain jurisdictions throughout the country.”
U.S. Attorney General Loretta Lynch described those illegal practices as “the criminalization of poverty.”
The letter explained it was issued to help the courts ensure that they operate fairly, noting the illegal enforcement of court fines and fees can have “profound” effects on low-income persons accused of “misdemeanors, quasi-criminal ordinance violations or civil infractions.”
“Individuals may confront escalating debt; face repeated, unnecessary incarceration for nonpayment despite posing no danger to the community;
lose their jobs; and become trapped in cycles of poverty that can be nearly impossible to escape,” the nine-page letter said. “To the extent that these practices are geared not toward addressing public safety, but rather toward raising revenue, they can cast doubt on the impartiality of the tribunal and erode trust between local government and their constituents.”
A caution from Justice
Among other things, the letter cautioned that courts “must not employ bail or bond practices that cause indigent defendants to remain incarcerated solely because they cannot afford to pay for their release.”
Finkelstein, a state constitutional officer, filed a public records request with the Broward court to obtain a copy of the Justice Department’s letter. Weinstein later explained that he “did not provide the letter to any stakeholder as it was addressed to the courts to assist with review of local practices and procedures.”
Weinstein said Friday he’s waiting on Florida’s Office of the State Court Administrator. “They’re reviewing it and will come back and advise us,” he said. “But I really don’t believe we are doing some of the things we are accused of. We don’t put people in jail because they can’t pay a fine.”
According to Finkelstein’s Sept. 2 letter, however, “Individuals are often held in jail following a magistrate hearing for a minor offense simply because they cannot afford to post the bond.”
Beyond the fundamental question of fairness is the impact that bond requirements have on Broward’s chronically overpopulated jail system, which has been under a federal consent decree and monitoring for decades.
In July, the Sun-Sentinel reported the findings of court-appointed jail population expert Dr. James Austin, who said Broward’s jails typically house 4,500 to 4,600 people, with 5,144 beds, but when the population exceeds 85 percent of capacity – or about 4,400 inmates – the system becomes strained.
According to the paper, Austin’s report went on to say that at the time of his analysis in 2015 about 300 inmates were being held on bonds of $100 or less.
The Eighth Amendment to the U.S. Constitution says “excessive bail shall not be required, nor excessive fines imposed.” Federal courts have interpreted that to mean that a defendant’s bail cannot be set higher than an amount that’s likely necessary to ensure his presence at trial.
Defendants charged with first-degree misdemeanors like petty theft or possession of a small amount of marijuana must post a $100 bond to get out. Those charged with a misdemeanor of the second degree, such as disorderly intoxication or loitering will need $25.
But even those small amounts can be difficult to scrape up for the homeless or the otherwise down and out.
‘Follow other jurisdictions’
In his summer correspondence, Finkelstein urged Weinstein to “follow other jurisdictions and begin implementing the release of misdemeanants without monetary bond.” He cited Calhoun, Ga., which in January “implemented recognizance release procedures” following a federal judge’s order.
The chief judge responded to Finkelstein that Broward judges do consider non-monetary releases “and divert as many individuals as possible to the Broward County Sheriff’s Pre-Trial Release Program.” The program includes screening, assessment and, for those who get out, monitoring.
Yet current bond practices that allow moneyed defendants to post a bond and walk free until trial “disproportionally affects minorities and the indigent,” according to Finkelstein.
“Diverting individuals to the pre-trial release program creates a double-standard wherein those with money are not required to be supervised by the Sheriff’s Office, while those without money require supervision,” Finkelstein wrote in his Sept. 2 letter.
In Friday’s interview, Weinstein said he is opposed to releasing all misdemeanor defendants on their own recognizance, noting that a “staggering” number of warrants are issued every year for defendants who fail to show up for trial.
“Whether to release is within the discretion of the judge,” Weinstein said. He cited domestic violence as a crime that is inappropriate for such treatment.
“Domestic violence may be a misdemeanor, but the amount of psychological abuse and previous physical abuse that a spouse may have suffered may place them at risk of serious emotional harm an even death,” Weinstein said.
In 2015, following complaints from State Attorney Mike Satz’s office, the court revised its bond schedule to require misdemeanor defendants charged with violent offenses such as battery, arson and domestic violence to appear before a First Appearance court judge before being eligible to post bond.
Finkelstein, however, argues that Broward’s bond schedule should be abandoned and that all defendants should be brought before a First Appearance court judge “to allow for individualized release conditions.”
“Individual determinations, however, require a 24-hour magistrate. This circuit has decided not to place such a ‘hardship’ on the judiciary, but instead place the true hardship on the indigent,” Finkelstein wrote.
Whosgonnapay / September 20, 2016 8:15 am
Who is going to pay for the next victims loss when they are let out of jail with little or no bond and they don’t show up? Who is going to pay BSO the cost of trying to round them up? Who is going to be held accountable for the loss of life that will certainly happen. Not Howard and not Lorreta.
Loretta has been engaging in criminal activity by ignoring the constitution, attacking police, letting illegals go free, and refusing to lock up known criminals. She has no moral authority and should be ingnored and hopefully will be in jail some day for the lawless thug she is.
Count LF Chodkiewicz Chudzikiewicz / September 20, 2016 9:35 am
No this article ignores how the criminals amongst both the Minority and Homeless are few BUT THAT FEW GAME THE SYSTEM BY SKIPPING COURT DATES N TEPESTING OFFENSES WHILE OUT WHILE THERE ID LITTLE OR NO BOND.
FRANK DADDARIO / September 20, 2016 12:18 pm
………..i really don’t know why i do this to myself becasue for forty years now i have collected any manner of evidence supporting what HOWARD is saying and the thing of it is the Judge knows it too but to be in his position one must simply PROTECT the status quo or else risk being removed = period = Broward County is run by politically powerful and many now wealthy good olde redneck klanners died-in-the-wool of county civics and operations ever since Prohibition – no outsiders are ever admitted in unless they go along with the frauds and the scams which is why when a fraudster does enter the ranks he rises like a rothstein into the judiciary and law enforcement protection rackets like a rocket in the pay-to-play system here
a young lady got drunk and drove her daddy’s porsche through a red-light and into bushes at fifty MPH running over and killing two homeless people who were sleeping in those bushes – she was escorted home by BSO and allowed to potentially escape the country to IRELAND so she could avoid prosecution indefinitely
a elderly BLACK man was caught in Central Bus Terminal on a bicycle that did not have a proper “license” for the bicycle and was arrested and couldn’t pay the fine so he spent five days in jail
BSO can be bought because BSO is FOR SALE (and so are many County Judges and elected officials and municipal administrators – i know because over the thirty plus years i bought a few myself !)
FRANK DADDARIO / September 20, 2016 12:41 pm
……………..however, it’s not only about the BOND issue ……………. homeless, transient, hobos and miscreants and vagrants could typically care less if incarcerated for longer periods because they cannot afford to pay either fines or bonds………….the entire industrialized jurisprudence complex of America can only insure judges retirement plans are fully funded, that court administrators can afford their $300 haircuts and alimony and boat payments plus the girlfriend, and that construction of even the basic courthouse, which now-a-days comes in at $400 per square foot IF IT CAN reliably screw the taxpaying public………….Broward County courthouse – magnificent marble corridors and sparkling exterior to emulate as if a pantheon to drunk judges thrown off the bench and – one even reach the pinnacle of being “INcapable of rehabilitation” ! is such an example – the ANIMAL HOUSE of courthouses – in the FT LIQUORDALE tradition since the KLAN ran the law here……………what a show this is
FRANK DADDARIO / September 20, 2016 1:40 pm
……………..and of course IF you are a high ranking BSO SHERIFF DEPUTY you don’t even need a judge to just go and arrest someone and put them in JAIL without BOND……………per MH………”Benjamin pleaded guilty to a conspiracy charge for accepting more than $185,000 in dirty money from Rothstein in exchange for using his position and badge to do favors for the fraudster. One of those favors involved escorting Rothstein to Fort Lauderdale Executive Airport, when he fled the country to Morocco after the Ponzi scheme exploded. Another involved the false arrest of Marcy Romeo Flaster on trumped-up prescription drug charges. Flaster is the ex-wife of Doug Bates, a Rothstein co-conspirator who is now serving a five-year prison sentence of his own. Flaster and Bates were involved in a bitter custody dispute, and Rothstein had Benjamin arrest her as a favor to Bates.”………………….DAVID BENJAMIN was a high ranking BSO and a BSO internal affairs head ! ? !
Raindancer / September 20, 2016 10:06 pm
While hundreds of people who can’t hustle up $25 or $100 sit in jail for days at a time, how much does BSO say it needs in taxpayer money to house and feed them? Gotta keep those numbers high. There’s gold in them there hills.
Gary Kollin / September 21, 2016 9:59 am
What is equally atrocious is the policy of issuing arrest warrants for probationers who are approaching the end of their probationary periods because they have been unable to pay their fines and costs. The judges often order no bond holds on these warrants.
The idea is to extend the probation so that the probationer can pay the fines and costs and costs of probation. The expenses involved in the arrest and incarceration usually far exceed the monies owed. When it is determined the probationer is unable to pay the monies, the probation cannot legally be extended.
So the person who cannot pay is locked up for not paying and then loses his job. The poor is further punished. And when they get to court, it is determined that they do not have the money so the only thing accomplished is the poor is pushed further into poverty.
At least Miami-Dade created a civilized system. Instead of issuing warrants for nonpayment, the judges set a report hearing. So instead of locking up a person for not being able to pay, a 5 minute hearing is held where the ability to pay is determined. It is less time than is spent when an incarcerated debtor is brought to court. And it does not create a debtor’s prison (jail). Worse it often takes days to get into Court to simply be released because of inability to pay.
Jerry / September 22, 2016 4:19 pm
Help me Howard as usual is fast and loose with the facts. If you examine the individuals held in jail who are charged with a misdemeanor or as Howard puts it “a 100.00 bond or a 25.00 bond”, you will find that the majority, while they have a 100 or 25 dollar bond for a particular charge, are held in jail because of a NO BOND felony case warrant or a Violation of probation or Community Control case
or other such hold. The NO BOND category makes up the majority of individuals currently held in the Broward County jail system. Broward has a robust pre trial services program (which has its own governing ordinance) whose main mission
is to actively seek out and release the indigent and non-violent. Most bonds set on misd cases are small. Ordinary people post bonds all the time. The current bond schedule is probably on of the lowest in the state. Here is a suggestion, have Howard give up his 50.00 per person public defenders app fee and post any 25.00 bonds or 100.00 bonds on the “poor” himself in cash. Or better yet, do his job as the Public Defender and instead of endlessly continuing cases,
maybe he could RESOLVE all of the NO BOND cases languishing in jail, thereby incredibly freeing up jail capacity. Nah. He won’t do that. Just blame the system, blame the Judges, blame anybody else. Oh, and demand more budget. No bond schedule?, 24 hour magistrates? EVERYONE needs to see a Judge? Yeah, sounds like a budget agenda for Ol Howie.
terre tulsiak / October 4, 2016 10:40 am
What about the middle class? Too busy to figure the system out, can’t afford to take a day off to go before the court, or the more wealthy hire attorneys who continue or settle cases without even notifying the plaintiff/defendant who is pro se, so they suck it up and can’t even protest because somehow they get targeted, fined for minor offenses like overgrown grass, or parking just over the line, leading to exacerbation of problems, ultimately getting license suspended or worse. I have had all these things happen to me and seen worse happen to others. The difference is I can write a check and pay a fine and many can’t and so sink deeper into despair. Some judges care and some don’t. I advise the average citizen who’s never been to stop by court and observe. Eye opening.
© South Florida Corruption.com / December 28, 2016 9:05 pm
As far as this is concerned:
According to the paper, Austin’s report went on to say that at the time of his analysis in 2015 about 300 inmates were being held on bonds of $100 or less.
Doesn’t the sheriff have the authority to release them R.O.R. ?
terre tulsiak RIGHT ON
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